So it’s no surprise that I pay particular attention to words and phrases within the legal framework in which I work today.

What I see disturbs me.

Certain words and phrases are critical landmarks in the geography of legal space.  They set the standards by which things are judged.  The way things are worded from the beginning — or as we say in seminars about such matters, the way the issues are framed at the start — will determine the end.

A Few Words About Loaded Words

This is why prosecutors love words like “victim,” “the People,” and pretty much any “loaded” word.  Police officers, particularly when talking about an accused person, toss out words like “perp,” “perpetrator” and “suspect.”  And although defense attorneys are not at all opposed to using loaded words, it seems to me we’re more often looking for words which are either neutral, personal, or (to the extent they are loaded) mitigating.  So, for example, we prefer “complaining witness” to “victim,” “prosecutor” to “the People,” and we like to use our client’s names to remind folks that they are, after all, still human beings.  Granted they may be human beings who have done some bad things, even some evil things; they are still humans.  And they should be treated as such.  Even if we think they didn’t treat others that way.  After all, if we believe they did these things, do we actually want to emulate them?

Avoiding loaded words, though, also serves the ends of justice.  When juries are already thinking of someone as a “suspect” rather than someone who has been accused of a crime, it encourages them to think of that person as having done the thing for which they’ve been accused, although they have not yet heard evidence proving guilt.  Since many potential jurors and jurors forget that someone is “innocent until proven guilty,” they’re already on a slippery slope; it’s that much easier for the prosecution’s loaded words to get them sliding down it.  And how horrible is that when it turns out the human being in front of the jury didn’t do what they’re accused of?

Wiggle Words & Slippery Legal Concepts

One area of linguistic analysis I’d love to see has to do with “wiggle words.”

Wiggle words are words which appear to have a clear meaning, but which actually do not.  Their meaning changes depending on such things as who is using them and what they are trying to do with them.  They’re called “wiggle” words because they allow people who have used them to “wiggle” away from a meaning you take from what they say when it turns out for one reason or another they don’t want their words to mean what you understood.

Some words are just inherently wiggle words.  “Try,” for example, is a wiggle word.  When someone says, “I’ll try to get that done by 5 p.m.” and they don’t, you won’t be able to hold them accountable.  Someone gets angry and says, “You told me you were going to have this done by 5 p.m.  I relied on you!” The other person says, “No, I said I’d try to get it done by 5 p.m.”  And the idea is that you were wrong for relying on them; not that they’re wrong for having failed to do the deed by 5 p.m.

The legal world abounds in slippery legal concepts.  I’ve noticed these things, but I’d sure love to see some “objective” studies.  Here are some suggested words or phrases for any linguistically-oriented types out there who are looking for an idea for a research paper, or a master’s thesis.

• “Reasonable cause” — If you are a citizen, as opposed to a police officer or submitizen, “reasonable cause” will mean that it is reasonable for some ordinary person to believe some thing.  By “ordinary” (another wiggle word) I mean you’re average person without any special mental challenges and not necessarily any extreme paranoia or cynicism.So, for example, if you saw someone driving down the street weaving across lines, you might think it’s reasonable to believe they’re drunk and someone should do something about that.

    If you’re a police officer, “reasonable cause” means you just spotted a Hispanic, Black, or Asian driving down the road and you think you should do something about that.

• “Preponderance of the evidence” — If you’re a defense attorney and you have to show something by a “preponderance of the evidence,” you’ve got a really high hurdle to overcome.  You probably can’t do it very easily, but you actually do have a chance of being able to do it with many judges.  (I said “many,” not “most.”)If you’re a prosecutor and you have to show something by a “preponderance of the evidence,” you have to show the court that there’s a possibility that in some potential universe, a thing could have occurred.  Because it’s a “only” preponderance, they don’t need a lot, but many argue as if this standard is something of the shade of “scintilla.”  Because it’s not, the prosecutor sometimes is unable to win using this standard.
• “Beyond a reasonable doubt” — Defense attorneys seldom officially have to prove anything beyond a reasonable doubt.  Theoretically, we don’t have to prove a lot of things.  For example, we’re not supposed to have to prove that our client is innocent.  That’s supposedly presumed.  Until and unless the prosecution “proves” it by having a police officer tell the jury that he thinks it happened a particular way and the defendant is the one who did it.Prosecutors love to tell me what difficult jobs they have.  “You defense attorneys have it easy,” they say.  “We have to prove things to a jury beyond a reasonable doubt.”  Yep, you do.  You have to prove to that jury the guy whom some of whom were honest enough to say “must have done something, or he wouldn’t be here” before you managed to “rehabilitate” them and we couldn’t afford to waste our peremptory challenge on them did the crime.

    But, seriously, you have a jury predisposed (especially when “death qualified”) to assume guilt, cops who testify “yeah, he did it,” complete with confessions he never made, and sometimes (e.g., gang cases) even just saying, “in my opinion, he did it,” and the jury wants the guy to prove he didn’t do it but I advise him not to testify.  How hard is it, really?

    And if he’s convicted on obviously bogus material, which we know because we know things the jury wasn’t allowed to hear, the appellate court (who will also know things the jury wasn’t allowed to know) will say, “but a jury believed he was guilty beyond a reasonable doubt, so we can’t overturn that.”

• “Substantial” — If you’re on the defense side and need to show something is “substantial,” that means you need one helluva lot of data.  It’s a slightly more difficult thing than “substantial” means in ordinary life.If you’re a prosecutor?  Look up “scintilla” in the dictionary.
• “Competent,” as in “competent evidence” — If you’re a defense attorney and have to show something you want to present is competent evidence, this means evidence which is pretty much unassailable.If you’re a prosecutor and you want to do the same, it means that somewhere, in some potential universe, you could find some idiot who would believe the evidence if he heard that someone heard the evidence and kinda sorta thought it was possible.

Where Are The Legal Linguists?

Now, to a substantial (but whose definition am I using?, *wink*) degree, I’m exaggerating.  Yet there really are a significant (oops!) number of cases out there where you can see this happening.  The meanings courts give to certain words differ depending upon who is using them and why.

And I think there’s reasonable cause for a linguistics major to consider doing her thesis on this, so we could get some kind of competent evidence that I’m right.

The crux of the reason for my long-term banishment was that I mentioned the impact the supposed adult — I’ll call him “Jack Merridew” — was having on my ability to perform some of my work and that I suggested continued interference by Merridew might provoke a legal complaint.  And that threw everyone into a tizzy.  I had unknowingly committed the ultimate sin: I “confused RL with IRC”; that is, I ignored the unspoken (and idiotic) belief that “real life” and “Internet Relay Chat” are two separate things.

Today, we know better.  Or do we?

I was reminded of this incident by a discussion on Twitter. An attorney there asked for ideas concerning the proposed invasion of privacy of various members of a digital support group for abused women.  Apparently, he is representing someone who wishes to maintain their right to privacy.  (As a side note, this is one of the main things I like about Twitter: the ability to pose quick questions to others in my field who may be able to provide insights I’ve not come up with myself.)

There was a brief mention of Electronic Data Discovery laws.  But in thinking about the reasons why people who were not involved in the litigation might have a right to have their information protected, the first thought that came to my mind was “why not use arguments from what Jack Merridew used to disdainfully refer to as ‘RL’?”

Although many like to think of the Internet as some entirely new frontier, “in reality” it isn’t.  And even if it were, human beings didn’t try to completely reinvent new systems of law from scratch whenever they encountered some “new frontier.”  If they did, the United States legal system would not look as it does today.  We would be missing our rich history in English common law that continues to be felt almost two-and-a-half centuries after the signing of the Declaration of Independence!

Lord Coke is alleged to have said,

He who knoweth the law, and knoweth not the reason thereof, soon forgetteth his superfluous learning. (William Everett Britton and Ralph Stanley Bauer, Cases on Business Law, p. 629 (1922).)

And the renowned Justice Oliver Wendell Holmes, Jr., in his 1897 law review article titled “The Path of Law,” stated that to be a good lawyer you needed, among other things, to:

[F]inally, so far as you can…consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.  (Oliver Wendell Holmes, Jr., “The Path of the Law” 10 Harvard Law Review 457 (1897). [I cannot give the specific page reference because the copy I found does not include the original pagination.])

Holmes followed this statement with the observation that we (presumably lawyers) don’t work enough with the theoretical underpinnings of law.  And — not that I’m any Oliver Wendell Holmes, Jr. — I have to say that I tend to agree.

Holmes’s point, by the way, did not mean that we ignore other areas, such as historical development.  He did not aim for some kind of pure theoretical study like those of Dworkin or Hart. What he meant was that to really be able to do our jobs as lawyers, we needed to have some understanding of public policy: the aim of the laws that made up our particular practices.  (For this reason, he argued that the study of Roman law, which had been recommended to him when he was younger, was simply a mistake.  Studying Roman law was a waste of time for someone practicing within the American jurisprudential system.)

With respect to the inspiration for this article — the specific questions asked on Twitter — I proposed analogizing from whatever situation might arise in a face-to-face, non-Internet-mediated support group.  A suggestion was made that in that situation, the exchanges are oral and subject to difficulties in reproduction.  In the Internet-mediated group, “it [is] written and preserved.”  The belief was expressed that “It is harder to fight a written document.”  And so the search is on for a rule that would allow the quashing of a subpoena for this written record (presumably a conversation preserved by private bulletin board software).

Holmes would see this as a mistake; a failure of jurisprudential theory.

There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. (Holmes, supra.)

Presumably, if something other than a churn had been broken, judgment could have gone to the plaintiff.

There is a public policy behind the refusal of courts to allow fishing expeditions into the happenings within therapeutic groups.  In California, at least, “psychiatric material is generally undiscoverable prior to trial.”  (People v. Gurule, 28 Cal.4th 557, 593 [123 Cal.Rptr.2d 345; 51 P.3d 224] (2002).)  (At trial, different principles apply. (People v. Hammon, 15 Cal.4th 1117, 1128 [65 Cal.Rptr.2d 1; 938 P.2d 986], citing Davis v. Alaska, 415 U.S. 308 [94 S.Ct. 1105; 39 L.Ed.2d 347].))

In the interest of keeping this article from running to book-length, suffice it to say that there remains an argument over whether or not the discussions on an Internet-mediated support group constitute “psychiatric material.”  Here, too, however, if I were the attorney, I would argue from a Holmesian point of view:  Why is psychiatric material generally undiscoverable prior to trial?  How should that principle be applied to the Internet-mediated support group setting?

A healthy understanding of, and reliance upon, the theory behind the law, rather than churning through a large number of databases looking for a case specific to such settings, where none may exist, goes a long way towards accomplishing the aims of the system.