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Learning the Language of the Law, 2016: Promoting effective legal communication
- 1. Promoting effective legal communication: An interdisciplinary collaboration Christoph A. Hafner Department of English, City University of Hong Kong Learning the language of the law: An interdisciplinary symposium for legal and language practitioners CUHK GLC, December 2, 2016
- 2. Overview 1. Learning the language of the law 2. A discourse/genre approach to language 3. Multimedia materials design
- 3. Learning the language of the law Problems and solutions
- 5. Language is medium, process and product in the various arenas of the law, where legal texts, spoken or written, are generated in the service of regulating social behaviour. (Maley, 1994, p. 11)
- 6. Meeting community expectations Using the language in strategic action The language challenge Understanding the language system Languageknowledge Legalknowledge
- 7. A discourse/genre approach to language Language as socially situated Language as a strategic resource
- 8. Judgments Statutes Legal problem questions Barrister’s opinions Review articles Case notes Essays Text types That fulfill particular, regularly occurring, communicative purposes of the legal discourse community
- 10. Strategic language use in the barrister’s opinion
- 11. Having perused the correspondence between the parties, I believe that there is an enforceable tenancy despite the lack of a written lease.
- 12. Having perused the correspondence between the parties, I believe that there is an enforceable tenancy despite the lack of a written lease. Hedging
- 13. Having perused the correspondence between the parties, I believe that there is an enforceable tenancy despite the lack of a written lease. Hedging Non-modal (certain) form
- 14. Having perused the correspondence between the parties, I believe that there is an enforceable tenancy despite the lack of a written lease. Boosting Hedging Non-modal (certain) form
- 17. What makes good legal writing? What makes good oral advocacy? What makes a good process? What advice do you have? Research-based ‘how-to’ videos How do I write like a lawyer? What structure can I use? What language strategies?
- 18. Design of instructional videos • Unified series of short, engaging videos • Research-based materials • Introducing key legal genres • Each series organized around a central case • Clearly signposted with introductions and reviews • Based on authentic examples of language in use • Visually highlighting linguistic/discursive structures • Combining meta-language with clear examples
- 19. Examples of materials The Quick Guide to Legal Writing
- 20. Series overview 1. An overview 2. Organizing the structure 3. Raising the issue 4. Stating the rule 5. Citing precedents 6. Citing legislation 7. Applying the law 8. Stating the conclusion
- 24. Thank you
Hinweis der Redaktion
- For the last couple of years, I've been leading a collaborative, language-related project, funded by the UGC. On that project I've been working with collaborators representing all of the three law schools in Hong Kong: Anne Scully-Hill at CUHK, Jack Burke and Rajesh Sharma at CityU, and Katherine Lynch at Hong Kong U. Of course, Rajesh has moved on to RMIT in Melbourne now and so we even have an international edge to our team now. I must say that I’ve been extremely fortunate to find such good co-investigators and I want to let them know how grateful I am for all of the effort that they have put into the project. Thank you all very much. The main goal of the project has been to create a digital multimedia resource for legal English. Specifically, we have been creating different kinds of video-based learning materials that focus on language and communication issues in the legal context. Some of these videos are interviews with legal experts, who explain what exactly it is that makes good legal writing or good oral argument. Others are instructional how-to videos that explain in more detail how to go about presenting legal arguments in writing or orally. Today I would like to demonstrate these materials to you and say a little bit about the approach that we adopted in creating them.
- I'm going to begin by providing a little bit of background into the issues raised by legal language and the challenges associated with learning the language of the law. Then I'll describe a discourse or genre approach to language, which I have found to be particularly helpful in language learning and teaching, [because it goes beyond a description of the formal nuts and bolts of the language to consider how language is strategically used in particular contexts.] Finally, I'll show how we have drawn on all of these understandings to design a multimedia resource for law students and their teachers.
- Let’s begin then, by looking into some of the issues associated with learning the language of the law.
- Rightly or wrongly, the language of the law has for many hundreds of years had a rather bad reputation, as you can see here. In this cartoon, a client is complaining to his lawyer that the document that the lawyer has drafted doesn’t look like a legal document at all - he says I can understand every word of it. Well, later, Richard Bates is going to talk a bit about his own experience of plain language drafting and he can maybe let us know if this kind of interaction actually ever happens.
- One thing that we can probably all agree on is that language is absolutely crucial to law. As Maley points out ‘language is medium, process and product in the various arenas of the law’. We use words to make our laws, whether they be statutes or case law, we use words to create arguments as we navigate through the legal process and we use words when we give decisions about the outcomes of legal disputes. In order to perform all of these functions, and in order to do that in as clear, precise, and all-inclusive a way as possible, the language of the law has evolved into a highly specialized variety.
- It’s a variety that poses a lot of challenges to students embarking on a career in law. One thing that students need to do is to develop a sound understanding of the language system. But that on its own isn’t enough. They also have to develop an ability to use that system strategically, always with a particular audience and purpose in mind. Finally, students have to meet the expectations of members of the academic community, and write according to the conventions of the legal discipline. Both language expertise and legal expertise are needed if students are to learn to use the language of the law. That’s why, on this project, we’ve adopted an interdisciplinary approach: combining the expertise of lawyers with those of applied linguists to create resources that most effectively meet the actual needs of students.
- It’s also very useful to adopt a discourse or genre approach to language. Such an approach sees language as socially situated: always being used in a particular social context to achieve particular strategic goals. In this sense, language is best understood as a set of resources that we can use strategically, rather than as a system of formal signs.
- Now, I was talking about a discourse or genre approach. In the legal field, examples of genres include judgments, barrister’s opinions, legal problem questions, review articles, case notes, statutes, essays, dissertations and the list goes on. So one way of seeing genre is as a text type. But all of these text types exist because they fulfil particular, regularly occurring communicative purposes of the legal discourse community. For example, a barrister’s opinion exists to communicate the advice of a barrister to a solicitor and lay client. It’s a genre that is regularly employed when solicitors, perhaps anticipating court action, feel that they need to draw on the specialised knowledge of a barrister. And over time, these text types have become conventionalised and regularised. We can identify the expected organization and structure and we can identify the expected range of language use. When they write their opinions, barristers typically organise them in a regular way and follow standard patterns of legal argumentation.
- So genre can be defined as staged, goal-oriented, social action. Staged, because it is organized in a conventional way; goal-oriented because it aims to fulfill community purposes; social action because the genre is a way of getting stuff done with language and involves writers, readers and the broader community.
- From my point of view, it’s important to go into detail about how language is used as a strategic resource. This involves mapping the strategic use of language onto the particular linguistic forms that are used to achieve the writer’s purpose. As an example, let’s look quickly at the genre of barrister’s opinion (which is one that I have researched) and the strategies that barristers use when they state their opinion. The trick, when it comes to a barrister’s opinion, is that they usually can’t give an opinion that is 100% foolproof but at the same time they do have to produce a clear opinion. This can be a bit of a problem and barristers resolve it in a range of ways. It’s interesting to see how they use metadiscourse, that is expressions that modify the speaker’s commitment or attitude to what they are saying, words like ‘perhaps’, ‘may’, ‘might’ and so on.
- Here is an example of a Hong Kong barrister summing up her overall opinion in a barrister’s opinion text.
- The first thing that I want to comment on is her use of the epistemic verb ‘believe’ which functions to hedge the conclusion. Using this word reduces the writer’s commitment to the truth of what they are representing. It is not categorically true that there is an enforceable tenancy, rather, this is the writer’s belief.
- Secondly, it is also important to note that the amount of hedging is quite minimal. In particular, the main clause itself is not modified in any way. We could say ‘there may be an enforceable lease’ and weaken our commitment to the proposition further, but the barrister doesn’t do that and that is consistent with the way other barristers write as well.
- Finally, we can also see a kind of boosting strategy being employed in the first part of the sentence. Here the barrister refers to her research process – having perused the correspondence – as a way of drawing to the reader’s attention the work that has gone into the opinion. It may just be one person’s opinion but work has gone into it. The aim here is to boost the credibility of the opinion. Other barristers were even more assertive saying things like ‘I have taken all of the circumstances into account’.
- So what we see there is the kind of research into discursive strategies that I have tried to bring to the multimedia materials design. I’d like to talk a bit about the rationale for the design of these materials now.
- Here we see a screenshot of our website, Legal English in Hong Kong. And what you can see right here on the homepage is that we have created three main series of videos: expert interviews, the quick guide to legal writing, and the quick guide to oral advocacy. The key idea in the design of these materials was that, when it comes to promoting effective legal communication, both lawyers and applied linguists have a contribution to make. So we wanted to develop videos that incorporated the views of legal professionals, and supplement these with videos that focused on language in use.
- As the name suggests, expert interviews are interviews with legal academics and legal professionals where we ask them questions like ‘What makes good legal writing?’; ‘What makes good oral advocacy?’. The idea is for students to get access to the views of legal experts on these topics in a way that they are unlikely to be able to do otherwise. We have collected a wide range of perspectives, including from judges, solicitors, barristers and from very senior people to very junior people as well. This should provide an interesting range for viewers. The Quick Guide to Legal Writing and the Quick Guide to Oral Advocacy are short ‘how-to’ videos dedicated to legal communication through writing and speaking. These serve to provide a language-focused supplement to the expert interviews. [Initially, I thought that this supplement would take the form of an online print-based reference work, something like a ‘grammar of legal English’. But then I thought about all of the amateur ‘how-to’ videos that have popped up on YouTube in the last 10 years, including instructional videos for language learning, and I thought ‘why not try to make something like that?’] The videos that we have ultimately produced are based on the kind of research into legal writing that I was demonstrating before and address questions like how to structure answers to problem questions and how to use language effectively in different parts of the answer. These language-focused videos flesh out topics that are addressed in the interviews, providing details about language strategies that students can use.
- The central idea of these instructional videos is to provide the language-focused support for common spoken and written genres in law. Here are some of the key features in their design.
- Let’s take a look at the Quick Guide to Legal Writing. This series of 8 instructional videos focused on how to write answers to legal problem questions, a key genre in legal academic studies. For those of you who are not familiar with this genre, the professor creates a fictional fact pattern that involves some kind of legal dispute. The student is then tasked with analyzing the facts in view of relevant law in order to arrive at an opinion or conclusion about the likely legal outcome.
- Here is the series overview with the main language functions that we address.
- Let me give you a little bit of background into the fact pattern that we present in Episode one. This fact pattern is one that we found in our exam database at CityU. Here we see Susan, who has bought a hairdryer from a retailer, Hair Goods, made by a manufacturer, Hair Production Co. Ltd. On the box we can see a warning label, which says that the hairdryer must not be used with wet hands. You can probably see where this is going. Susan uses a little bit of alcohol-based hair tonic and dries her hair but unfortunately, she does so with wet hands. This is the result here. Finally, we see Susan planning her legal action against the retailer and the manufacturer.
- In episode 8, we address the rather vexed question of how to provide a sufficiently hedged, but at the same time, sufficiently clear conclusion in a legal problem question. [After the video has played] Hopefully what you can see from the episode is that we have approached language as a set of resources or tools to get things done: in this case, appropriately stating a conclusion. Then, we have provided a description of the linguistic resources that can be called upon to perform this function. In doing so, we have not shied away from using technical meta-language to describe these resources, but, you don’t have to be a linguist to understand what we are getting at. Another point is that the video just provides a sketch of these resources, it is by no means complete. This leaves it open for teachers to exploit if they want to. For example, they could ask students to review their own problem question answers and identify other possible strategies and comment on whether they are effective or not. All of episode 8, i.e. 5 mins 32 sec
- Looking ahead, our biggest job now is to integrate these language-focused videos with the expert interviews that we have recorded. We are doing that by providing a list of 6 related videos on each video page, so that we can suggest further viewing to our audience. Thus, where experts talk about the importance of giving a clear opinion, we can provide a link to the video we just saw. Another challenge is going to be to drive traffic to the site. One fairly obvious way that we will be going about this is to use the videos as an integral part of existing courses – for example, I co-ordinate a course on legal English at CityU and we have already tried out some of these videos on that course. They can be used by students both in class and out of class. Of course, there are many many ways that students and teachers might decide to use the videos and we are very eager to hear ideas from you about that.