Courtroom Language Skills (Second Edition)

Author: Liao Meizhen
Publisher:
Publishing Date: 2005-08-01
Features: Dear readers, before discussing legal language skills, let me start with a few preliminary questions as a warm-up exercise. The purpose is to help you better understand the content and objectives of this book.
1. Is language important to law? What is the relationship between language and law? To answer this question, let us first hear what some renowned scholars have to say: Peter M. Tiersma, the vice president of the International Association of Legal Linguistics and a professor of law in the United States, expressed the following sentiment in his book Legal Language (1999): "Few professions rely on language as much as law." He believes, "Law is the law of words," and "Moral and customs may be embedded in human behavior, but law arises through language." William M. O’Baar, a famous anthropologist and legal linguistics scholar, co-authored Just Words (1998) with John M. Conley, a law professor at the University of North Carolina at Chapel Hill. He stated, "In both written and spoken forms, law is language." A. Kaufman and N. MacComick simply put it: "Jurisprudence is, in essence, a branch of legal linguistics." As can be seen, law is inseparable from language: legislation cannot be separated from language—every law and regulation must be expressed in words; judicial trials cannot be separated from language—direct testimony is the principle of judicial trials; law enforcement and judicial mediation are equally inseparable from language; and legal research is even more inseparable from language. Many legal issues are, in fact, language issues. Therefore, learning law cannot do without learning language; practicing law cannot do without mastering language; researching law cannot do without researching language; and researching legal issues cannot do without researching the language of law.
2. What is the relationship between linguistics and legal linguistics? Linguistics is the study of language patterns, while jurisprudence is the study of law. What is the connection between the two? Before answering this question, let me share a related observation. In July 2003, I was invited to attend the 6th International Conference of the International Association of Legal Linguistics held at the University of Sydney in Australia, where I met nearly all the internationally renowned legal linguists, lawyers, and judges. During our conversations, I found that many lawyers and judges had a solid background in linguistics, and many had studied linguistics before pursuing law. Moreover, this approach has seemingly become a consensus among law students in some Western countries. For example, Lawrence M. Solan, the former president of the International Association of Legal Linguistics, once wrote about an incident in his book: In the late 1970s, he decided to study law and prepare to become a lawyer. Before entering law school, he consulted several well-known practicing lawyers. To his surprise, many of them gave him advice like this: "Law is largely a linguistic issue, and the transition from linguistic thinking to legal thinking should be very natural." For lawyers, having a linguistic background gives them an advantage over those who do not (Solan, 1993). Solan followed this advice, first studying linguistics before pursuing law. Later, he wrote a book (The Language of Judges) in which his analysis and critique of judicial language—especially the language used to interpret laws—were brilliant and impressive. He was later elected as the third president of the International Association of Legal Linguistics by renowned British linguist Malcolm Coulthard, the first president of the association and a professor at the University of Birmingham, and became one of the leading figures in the field of international legal linguistics today. Solan’s example fully illustrates the importance of linguistics for those working in the legal field. In my own extensive experience observing court proceedings, I have found that the language used by Chinese judges, public prosecutors, and lawyers has many issues—at least debatable. In fact, some observant, diligent, and eager-to-learn lawyers, public prosecutors, and judges have also noticed these problems. However, unfortunately, many people know the "what" but not the "why." In reality, many courtroom techniques are the application and development of linguistic knowledge. Therefore, if judges, public prosecutors, and lawyers have some knowledge of linguistics and a certain theoretical foundation in linguistics, they can completely avoid these problems during trials. Thus, linguistic knowledge is indispensable for those in the legal field. In some Chinese universities, law schools or departments of law do not even offer courses in linguistics, as if linguistics has nothing to do with law or legal studies. Some do offer such courses, but they are very superficial and merely decorative. There are almost no courses that truly integrate linguistic theory—especially advanced, influential theories in contemporary times that have been proven effective—with law and legal language for analysis. This is truly a regrettable situation.
3. Language skills and roles
This book is about language skills, specifically about courtroom language skills. So, are language skills the same for all professions and people? The answer is: skills vary by role, and roles are determined by purpose. Purpose can be institutional or specific to individual actions. The establishment of people's courts, procuratorates, and law firms, as well as the creation of the professions of judges, procurators, and lawyers, are all for certain purposes. The purpose of a prosecutor is "to accuse," while the purpose of a lawyer is "to defend." Different purposes determine the roles of these individuals in court, and different roles inevitably lead to different language and language strategies. Therefore, we will discuss the language of judges, procurators, and lawyers separately. However, they all use the same language—Chinese—and their goal is persuasion. Thus, some language issues and language skills follow common patterns. At the same time, courtroom language is used in interaction, so only by fully understanding the language skills of the other party can one better utilize one’s own language skills to persuade the other.
4. What to say and how to say it
Legal language includes two levels: language content and language form. In simple terms, it is "what to say" and "how to say it." Philosophers have already made countless insightful remarks on the issue of form and content, so I need not elaborate on it here. There is a popular saying, "What matters is not what you say, but how you say it." We believe that both "what to say" and "how to say it" are important, meaning that form and content are equally important. However, for a law student, after spending four years in university, they may have learned what to say when they become judges, procurators, or lawyers, but they may not have learned how to say it effectively. Therefore, it is still necessary to learn how to say it. This book focuses on "how to say it"—how to say it better, more effectively, more powerfully, and more persuasively, so as to achieve the greatest effect with the least cost. "How to say it" is essentially the art of speaking, the strategy of speaking, and the skill of speaking. Therefore, this book is dedicated to legal language skills, specifically to discussing how to speak in the legal field for law students, especially those who are about to become judges, procurators, or lawyers, as well as those who are interested in the legal field. These language skills or strategies may not make them famous judges, unbeatable procurators, or victorious lawyers, but knowing and understanding these language strategies and skills will certainly help them progress faster and more steadily on the path to these achievements—at least, they can help them become qualified judges, competent procurators, and qualified lawyers.
5. What content will this book cover?
1. Focus on courtroom discourse, specifically Q&A. Why? Because the entire court trial process is built on Q&A. If we can compare the courtroom to a battlefield, then prosecutors, lawyers, and parties are all warriors. On this "battlefield," the weapon that determines victory is language, and Q&A is the most important weapon.
2. Discuss skills in the context of law. To write this book, the author read many works on the art of language and language skills. The author found that while language, the art of language, and language skills share many similarities, courtroom language, the art of courtroom language, and courtroom language skills have a very important difference: courtroom language skills are constrained by "law." Any skill that departs from law and legal provisions is like a kite without a string—useless. In the end, the author wants to tell readers that legal issues are not simple skill issues. Skills are only one factor in winning courtroom debates. To win a courtroom debate, one must first have a solid theoretical foundation; second, one must have a solid practical foundation, such as thorough investigation and evidence collection. This book is primarily written using the author’s own collection of a large number of real recordings from court trials, supplemented with appropriate explanations, to achieve the purpose of the book. The author hopes that these real materials will help readers understand courtroom language skills.
(Note: The original text contains some repetitive content, which has been retained in the translation as per the request.)