Sunday, August 29, 2010

Language and Law

An article in the New York Times Magazine today by linguist Guy Deutscher, raised some interesting questions about how language can affect the way we think--not in the discredited Orwellian way that limitations in a language's vocabulary can limit the ideas we can conceive of, but rather in the sense that the grammatical structure of different languages can force speakers of one language to think about things that speakers of another language need not always consider.  For example, an English speaker who tells someone he had dinner with his neighbor need not identify the neighbor's sex.  Other languages do not permit speakers to maintain such discretion.  On the other hand, Chinese speakers need not identify whether the dinner occurred in the past, present or future.  English speakers also do not identify inanimate objects as male or female, while speakers of European languages must think of all objects in gender terms.

Perhaps languages can even change the way our brain operates: The language of an Australian aboriginal tribe requires speakers to identify spatial relationships by compass directions, e.g., east or west instead of left or right, which supposedly gives its speakers a highly developed innate inner compass.

In a city as diverse as Los Angeles, lawyers often find ourselves needing to interpret speakers whose first language is Spanish or Korean or Farsi or a number of others.  These described differences in the way such speakers describe and therefore think about the world make me wonder whether important information sometimes gets omitted or lost in translation, or whether we might sometimes make inferences from a speaker's translated words that would not be justified in their original language.

But to me the most interesting example Deutscher gave of how language can affect the way we describe and think about the world was the Matses language in Peru, which requires speakers to identify how they came upon the knowledge they are imparting.  They cannot make a statement about an event without describing whether they personally witnessed it or heard about it or whether they inferred it from circumstantial evidence.  This example made me wonder whether lawyers would have an easier time examining a witness in the Matses language, or whether it would be more difficult for a witness speaking that language to make up a story on the witness stand. (I also often wish the talking heads on the tv news would take the trouble to tell us how they happen to know some of the stuff they are spouting, or whether they are just making it up.)   It is one of a trial lawyer's basic challenges to probe the basis of a witness's knowledge.  Is the witness speculating?  Was the witness in a good position to view what they claim they saw?  Is the witness making an improper inference based on what they did see or hear?  It might be helpful if our language required the kind of evidentiary precision that we sometimes have to work hard to obtain.

(still from the film Lost In Translation)

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Thursday, August 26, 2010

Expedited Jury Trials

The California State Legislature this week approved a bill allowing for simplified jury trials, if the parties consent to such a procedure.  (The bill is now awaiting the governor's signature.)  To utilize this procedure, parties would have to agree to a reduced number of jurors, a limited number of peremptory challenges, a very limited (3 hours per side) amount of time to present their case, a "high low" minimum and cap on the jury award, and strictly limited ability to file appeals and post-trial motions.

This sounds like a noble experiment in attempting to reduce the cost of jury trials, but I wonder how often such a  procedure would be used.   I think a lot of lawyers will be leery of entrusting their client's fate to a jury without the protections of post-trial motions and appeals.  I also think that since most of the litigation costs that deter parties from taking cases to trial are incurred prior to trial, shaving the costs of trial might not very much alter the parties' calculations that determine whether or not to try the case.  Still, for cases where both sides really want their fate determined by a jury, but who want to reduce the substantial costs of jury selection, number of trial days, motions and appeals, this idea could represent a viable option.  I am generally in favor of reducing impediments and costs that prevent cases from getting to trial.  This bill could provide one way to getting to that result.

(photo from BBC program, The Verdict)

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