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Linguistic Issues in Legal Documents
Saturday 3:30-5:00
Linguistic issues in the interpretation of wills
Disputed wills sometimes offer an interesting application for linguistic analysis, because the amount of contextual information that can be considered is limited. At the time a will is interpreted or construed,
the will maker is unavailable to explain what he intended, making will interpretation or construction different from some cases of the interpretation of other illocutionary documents like constitutions, legislation or contracts. Unlike a constitution or a piece of
legislation, there is hardly ever any precedential authority bearing specifically on aspecific will. In addition, there are strict legal limitations on
the kinds of extrinsic evidence that can be introduced to help a court
construe a will. While the interpretation of some contracts is aided by
knowledge of the usual local business practice in the relevant line of
business, there is no analogous concept for will interpretation.
The concentration of attention required on the "four corners" of a disputed will that follows from the unavailability of much
contextual information provides fertile ground for the application of syntax
and pragmatics and other sorts of discourse analysis. Syntax can help
resolve apparent ambiguities, especially in the case of a holograph with
grammatical deviations from standard form, particularly where
conventional markers of form such as capitalization and punctuation are
used unconventionally or not at all. As for pragmatics, Gricean theory canprovide a foundation for conclusions deriving from redundancies,
internal contradictions, or irrelevancies. Moreover, some legal principles of
will interpretation echo Gricean principles. The rule "Give effect to
every expression" instantiates the Gricean maxims of Quantity and Relevance;
the rule "[a]ll the parts of an instrument are to be construed in relation
to each other" reflects the maxim of Relevance; the rules pertaining to
ambiguity (such as those permitting the introduction of extrinsic
evidence) reflect the submaxim of Manner (Avoid Ambiguity). And the
overriding purpose of will interpretation by a court, that the court
must effectuate, to the greatest extent possible, the testator's intentions
as manifested in the will, manifests the overriding Cooperative Principle. This correspondence between pragmatic theory and certain legal
principle scan add clout to a forensic linguist's contribution to the
interpretation or construction of a disputed will.
Lies on the Lips: Dying Declarations, Western Legal Interpretations, and Reliability as Reported Speech
When one individual is killed by another, he or she may utter some finalwords to a third party indicating the circumstances of his or her death. This includes identification of the individual who perpetrated the event.The repetition of this utterance in court by the third party represents adramatic example of reported speech. In Anglo-American law, this speech isadmissible for the truth of the matter asserted--and hence the guilt of aidentified party.
However, it appears that the rationales for rule are faulty. First,prima facie western cultural assumptions regarding the author speech indying declarations have limited usefulness to furnish "guarantees oftrustworthiness" required by law to admit such reported speech. Second,"objectivity" and "neutrality" via the "conduit metaphor" of language, again an assumption of western legal practitioners and commentators, appears to be unsubstantiated and relies upon American folk wisdom ratherthan linguistic reality. Here, insights of Reddy, Tannen, Volosinov, andBathkin would apply. Third, a recognition that the cosmology and frameworkof the author, recipient, and court are substantively different indicatesthat the substantive content of the report may not reflect the reality ofthe utterance and its attendant circumstances. Here, Goffman's assessmentof frames and Ortony, Miller, and Schon's work on metaphor areinstructive. These assessments also explain the inertia associated withthe current legal cosmology. Finally, by viewing the reported speech asthe creative act that it is, the weaknesses associated with the dyingdeclaration as "objective" speech is exposed. Fraser and others' work have been helpful in this area.
Thus, dying declaration reported speech, from a sociolinguistic analysisof the author, reporter, and court, would seem to be of limited substantive reliability. As such, the rule severely penalizes those who are wrongly accused and provides those individuals with no recourse to avoid that accusation.
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Bethany K. Dumas, University of Tennessee, and
Dennis H. Inman, U. S. Magistrate Judge, Eastern District of Tennessee
Jury instructions from the judge's perspective
The authors will review evidence of the continued use of incomprehensible jury instructions, summarize published theories about the reasons for the lack of improvement in jury instructions over the last twenty years, anddescribe the frustration of bench judges with incomprehensible juryinstructions.
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