Language and Power in the U.S. Civil Trial. Trial language: Differential discourse processing and discursive formation.
By Gail Stygall. Philadelphia: John Benjamins, 1994. Pp. 226. $59.00.
Reviewed by Keller S. Magenau, Georgetown University (Magenau@worldnet.att.net).
Keller Magenau is a Ph.D. candidate in sociolinguistics at Georgetown University. Her research has focused on political discourse, courtroom discourse, and language and gender in the workplace. Her dissertation will examine trial discourse.
© Copyright 1996 Language in the Judicial Process. All rights reserved.
In the more than two decades of work in language and the law, researchers have clearly demonstrated that the language of the law is opaque to the point of incomprehensibility for many lay participants in the judicial process (e.g., Melinkoff 1963, Charrow and Charrow 1979, Danet 1980, Solan 1993). Yet despite our intimate understanding of this, little has been done to make legal discourse more accessible to non- professionals, even as it remains a pervasive feature in people’s lives. Why should such discourse be sustained?
In Trial Language, Gail Stygall suggests that analysis of legal language needs to move away from mere descriptive analysis to an examination of how the maintenance of legal language serves institutional power and dominance. According to Stygall, past research has not critically analyzed legal discourse because we have failed to recognize the need for social theory in our analysis. She offers her study as an example of how the relationship between social theory and critical discourse analysis might work (5). She suggests that incorporating Foucauldian concepts of discursive formation and discipline can provide a basis for selection of discourse features which will permit such critical analysis of legal language. Thus, the framework for Stygall’s analysis grows out of Foucault’s identification of means of controlling the production of discourse: rules of exclusion, division and rejection, and a historically defined concept of truth.
Ultimately, Stygall’s analysis focuses on the identification of discursive features in trial language that reflect Foucaldian means of control. Following her introductory chapter, in which she lays out this theoretical framework, Stygall turns to her critically based analysis of a U.S. civil trial concerning damages for negligence in a traffic accident.
Following the chronological order of the civil trial that she documents, Stygall presents her qualitative analysis of the case. She devotes a chapter to each of the phases of the trial: voir dire (ch. 2), preliminary instructions and opening statements (ch. 3), presentation of evidence (ch. 4), and closing arguments and jury instructions (ch. 5). In her analysis of each phase of the trial, she demonstrates how legal language excludes certain discourse structures prevalent in everyday English. She further illustrates how legal discourse categorizes all events as legal or nonlegal. The significance of events that do not fit legal categories is rejected, even as these events may remain relevant to the parties involved in the legal action. Stygall argues that analysis of these practices of exclusion and division can productively demonstrate how legal discourse creates consistently different understandings of the same experience between the legal professionals and the lay jury (202).
Stygall’s data consist of the trial transcripts (one produced by the court reporter, one by herself), and interviews with the two attorneys and five of the six jurors in the case. She herself was present at the two-day trial as a participant-observer, and she conducted interviews with jurors and attorneys after the trial. In her interviews with all participants she first asked them to provide ‘free narratives’ about the trial.
She also asked the attorneys to identify portions of the trial transcripts that represent discourse reflecting specifically legal events and legal categories. In interviews with jurors, she asked them to report on their reactions to, and interpretations of, those portions of the trial identified by the attorneys as ones having legal significance.
In chapter two, analysis of the voir dire, Stygall suggests that legal professionals and lay jurors employ different frames and keys for interpreting relevant events. Lawyers understand that preliminary questions of potential jurors have legal consequences. Jurors, however, understand the event as a ritual, thus fail to recognize legal implications of such questions. Stygall suggests that this difference results from jurors having “no access to the legal frame, nor to the legal text and speech structures” (77). She also argues that in the voir dire process, jurors first begin to be exposed to the rules of discursive formation in the courtroom. For example, the law rejects certain otherwise plausible excuses for being excused from jury duty. Financial hardship is not legally acceptable. But having the same vocation as a defendant might be acceptable.
In chapter three Stygall argues that jurors continue to fail to recognize legal categories and thus fail to understand the full significance of preliminary instructions and opening statements. Their failure to recognize important legal categories is partially a consequence of the fact that there is a significant reduction of information from the pre-trial stage to the trial. Jurors do not have access to much of the information used to determine the relevant legal issues. Because of the jurors’ limited access to information, they also fail to recognize what Stygall calls the “hidden extra burden” for the plaintiff’s attorney (115). In the American courts, the moving party carries the heavier burden of proof. According to Stygall, “the plaintiff, the moving party, must present more evidence in order to recover damages than the defendant must present in order to avoid payment. This discursive practice has major consequences for the discourse itself. The moving party carries a double burden: not only must the moving party offer more or better evidence, but the moving party must also shoulder the burden of introducing and explaining the legal concepts, terms, and elements to the jury” (84). Stygall suggests that since jurors don’t have access to the legal frame under which the plaintiff’s attorney operates, they ignore ties between legal topics, and instead judge the plaitiff’s attorney an ineffective speaker. This pattern of misunderstanding continues to play a role throughout the trial.
In her discussion of the evidence phase of the trial (ch. 4), Stygall illustrates how narrative structures and evidentials commonly found in ordinary discourse are limited in or excluded from trial discourse. In order to ensure that only the legally relevant issues are presented to the jury, testimony proceeds primarily by means of heavily constrained question-answer sequences. Exclusion of ordinary linguistic structures, managed by constraining questions, and the use of lexicalized phrases reflecting legally relevant categories, has a deleterious effect on jurors’ recognition of the important legal issues of the case. Attorneys are obligated to present testimony to support or weaken a claim of legally defined negligence. But Stygall argues that jurors do not focus on the legally relevant categories. Instead, she argues, jurors’ interview responses reflect a reliance on their own real world knowledge of how accidents occur to create a coherent narrative from the testimony left fragmented by legal structure. According to Stygall, “[j]urors ignore what they don’t understand, consequently not recognizing elements of testimony important to the legal case” (203-204).
In chapter 5, Stygall discusses the closing arguments and the judge’s instructions to the jury. She illustrates how counsel for both plaintiff and defendant make use of narrative structures and hearsay evidentials (which are excluded from the evidence phase) in order to suggest an interpretation for the jury that is favorable to their client. But once again, the plaintiff’s attorney’s attempt to construct a story which is consistent with the legal issues is misunderstood by the jury. Stygall claims that again the plaintiff’s “extra burden” requires him or her to use more legalistic language than the defense attorney needs to. According to Stygall, “[j]urors continued to discern critical style differences [in the discourse of the plaintiff’s attorney versus the defense’s attorney], once again attributing the difference to the individual attorneys rather than to the constraints of the legal discourse” (176). She found that jurors “remained confused both about the legal concept and about how they were to fit the narratives to the concept” (173). The jurors suggested that the plaintiff’s closing argument was “incoherent” and “lost the thread” (173).
In her discussion of the judge’s final instructions to the jury, Stygall outlines those instructions given. She demonstrates that jurors’ interview responses again reflect a reliance not on legal categories, but rather on their own real world knowledge to interpret the significance of these instructions. For example, while the [written instructions that the judge reads are intended to reflect the judge’s legally neutral stance, one juror interpreted such neutrality as the judge’s intentional attempt to distance herself from what the juror saw as the plaintiff’s legal maneuvering (189). Thus, the juror misinterpreted a legal stance as a personal one, reflecting favor for the defendant.
In her concluding chapter, Stygall offers a historical and cross-cultural perspective on the discourse of the courts. This perspective demonstrates “both an increase in number of forms and the development of a set of rules governing the language of those forms” (199). Stygall argues that such a movement toward an increasingly exclusive, specialized discourse has the potential of depriving ordinary citizens of political control over their lives.
Stygall’s framework offers a promising avenue for analysis of the relationship between language and institutions. She demonstrates the potential of utilizing Foucault’s concepts of discursive formation and discipline in selection of discourse features for analysis. Her study suggests that much of the discourse of the U.S. civil trial is driven by exclusion, division and opposition.
However, Stygall has not yet demonstrated conclusively that legal discourse maintains a “continuing and constitutive power in society” (193). Her interview data provide evidence that one set of jurors based their decision on their own non-legal perspective, rejecting the constraints imposed by legal categories and legal discourse. Thus it is unclear whether, in the case analyzed by Stygall, legal language controlled the outcome.
It does seem that critical discourse analysis that makes use of Foucauldian social theory has the potential to yield fruitful analysis. For the identification of the potential of this approach, Stygall is to be commended. Yet it remains to be determined whether, and how, and to what extent legal discursive practices constrain the finding, and definition, of truth in most jury trials.
Methodological criticisms are sometimes the easiest and least meaningful to make, often reflecting the reviewer’s own biases, rather than any significant comment on the work being reviewed. Still, a note on Stygall’s methodology may be in order. As noted above, a primary focus of her book is an awareness that legal professionals and lay jurors have consistently different understandings of the same experience (202). Because Stygall asked attorneys to identify legally significant passages and then asked jurors to comment on those same passages, the consistent differences she documents may be more an artifact of her interview strategies than a meaningful difference affecting the trial’s outcome. It is not clear from Stygall’s description of her methodology how she elicited the participants’ comments. Further, because the attorneys were asked to identify the legally significant passages, we cannot tell whether those passages greatly influenced the jurors in their deliberation and decision-making.
Finally, it would be a disservice to the reader to fail to mention that the book would have benefited greatly from more careful editing. The many typographical and editing errors, together with the somewhat problematic organization of the book, can be distracting, if not actually frustrating.Despite these problems, the book’s strengths make it worthy of attention.
Stygall’s perspective offers much to both discourse analysts and lawyers; it will be particularly important to those who are interested in the relationship of language to institutions and power, but it will be valuable to all those interested in the role of language in the judicial process.
Charrow, Veda R., and Robert P. Charrow. 1979. Characteristics of the language of jury instructions. In Georgetown University Round Table on Languages and Linguistics 1979, ed. by James E. Alatis. Washington, D.C.: Georgetown University Press. 163-185. Danet, Brenda. 1980. Language in the legal process. Law and society review 14:445-564. Levi, Judith N. and Walker, Anne Graffam. 1990. Language in the judicial process. New York: Plenum. Melinkoff, David. 1963. The language of the law. Boston: Little, Brown. Solan, Lawrence. 1993. The language of judges. Chicago: University of Chicago Press.