The Language Teacher

In this paper, I describe a workshop called "Languages of the Law" that I have taught several times with John Swales as part of the University of Michigan's pre-sessional English for Legal Studies (ELS) program. This workshop is unique among legal English courses in focusing on variation in legal language, both across different kinds of legal texts from the US and across texts from different countries.

The six-week ELS program is designed for international students, who come to the United States to study American law after earning law degrees in their home countries. The program is designed to help them acquire the English-language skills that they need to survive in an American law school, which they all start immediately following the program. In addition to the workshop described here, the program consists of four major courses: Processing Legal Materials, Academic Legal Writing, Interactive Listening and Speaking, and Researching Legal Issues.

The Workshop

The two-day Languages of the Law workshop allowed the students to step back from their other language study and reflect on certain aspects of what they had learned. We felt that they would be better able to deal with the various legal texts, or genres, if they were more consciously aware of the purposes and conventions associated with each genre. For example, judicial opinions often have a narrative section outlining the facts of the case. Rather than needing to remember the whole narrative, however, students need to be able to pick out the parts that are "material," or important for the court's reasoning in the decision (see Swales, 1990, pp. 72-73). We also felt that the students needed to understand how legal genres are related to each other within the American legal system and also how they compare with genres that the students were more familiar with from their home country. The workshop covered both specific genres and general linguistic features of legal language. We started with broad generic features, moved to narrow features, and then broadened out again at the end.

The Concept of Genre

We first introduced the students to the concept of genre and the importance of conscious knowledge of genre purposes and conventions. We then showed the students that they already knew a considerable amount about American legal genres. Divided into groups of two or three, they were given short excerpts from six different texts and asked to determine the genre of the original text.

Example 1 below shows one of the excerpts, from an appellate opinion; the other examples come from a law review article, a brief, a statute, a regulation, and a contract.

Example 1: Next, defendant claims that the court erred in refusing to give the jury five supplemental instructions. Four of the proposed instructions dealt with the issue of notice. As discussed previously, notice was not an essential element of plaintiff's case. The remaining instruction concerned the liability of a possessor of premises. This was covered by the standard jury instructions. Moreover, the proposed instructions failed to state the applicable law in an unslanted and non-argumentative style. MCR 2.516(D)(4); Johnson v Corbet, 423 Mich 304, 327, 377 NW2d 713 (1985); Beadle v Allis, 165 Mich App 516, 418 NW2d 906 (1987). The court did not err.

The students were very successful with this task, even made some guesses about the texts that I did not think possible. For example, some students determined that example 1 not only came from an appellate opinion, but also from a mid-level court rather than a supreme court and from a state court rather than a federal court. To identify the genres, the students used many linguistic features, including sentence length, tense, citations, and vocabulary choices. This exercise made the students more aware of tacit knowledge, which gave them confidence and helped them develop expectations about legal genres to guide their reading and writing.

Linguistic Characteristics

The next section of the workshop dealt with linguistic characteristics of American legal English, particularly lexicon and syntax. The students are often unaware of just exactly how the vocabulary of legal English sets it apart from general English. They know that it uses some technical terms, but they are sometimes not sure which words these are. They enjoy learning that some words used in both legal and non-legal contexts have legal meanings that are different from non-legal meanings and can contribute to misunderstanding when used with non-lawyers, such as clients. One such term is prejudice, shown in Example 2. We discussed choosing appropriate lexical items in communicating with various audiences.

Example 2: "The judge dismissed the suit with prejudice." Legal meaning: The dismissal included a loss of legal rights, and the suit may not be re-filed. Non-legal meaning: The judge was biased; if the judge had been objective, the suit may not have been dismissed.

Moving from vocabulary to syntax, we studied structural ambiguity. It is a serious problem to draft or examine a legal document without realizing that it has multiple possible meanings. The students worked in pairs to determine ambiguity in example sentences and rewrite the sentences unambiguously. We started with common examples from general English, such as "The old men and women should sit in the back of the boat." Should all women sit in back or only the old women? We then moved to ambiguous sentences from legal contexts.

Example 3 below comes from a car insurance policy and was the subject of litigation (Solan, 1993). The sentence provides coverage to both the policyholder and others for whom the policyholder is responsible when driving a car that the policyholder does not own.

Example 3: "Such insurance as is provided by this policy applies to the use of a non-owned vehicle by the named insured and any person responsible for use by the named insured provided such use is with the permission of the owner."

Does the phrase "provided such use is with the permission of the owner" apply only to "any person responsible for use by the named insured" or does it apply to both this person and the policyholder ("the named insured")? We would like to expand this section of the workshop in response to student requests, but such sentences are not always easy to find and we have a limited supply of them.

We then covered nominalizations, which have widespread use in English legal writing, just as in technical writing and other kinds of formal English prose. Our objective was to provide students with a variety of choices for "carrier" verbs. For example, rather than to judge, in legal writing one will find to make a judgment. Additionally, however, one can release, form, pronounce, enter, or deliver a judgment. Similarly, to claim often becomes to make a claim, but it can also be to submit, present, bring, initiate, or file a claim, depending on the circumstances. The students brainstormed about possible carrier verbs for the nominalized forms of many verbs that are commonly nominalized in legal English.

Finally, we moved back to discourse-level structures, first comparing legislation from different countries, and then judicial opinions. In comparing legislation, we worked from a nationality problem from Millett (1986). In this problem, a fictitious couple living in France is going to have a baby. The husband is British and the wife is French, and they would like for the baby to have dual French and British citizenship. They want to know if they can have their baby in France or if they should arrange to have the baby in the UK. The students were given the relevant nationality statutes from both countries, with the relevant portion of the French Civil Code provided in both French and English. When the students worked out the answers to the problem, we discussed the difficulties and how they differed across the statutory materials from each country.

The students agreed that the French civil code was easier to work with than the UK statute, but the causes of the differences were surprising to them. It is often said that civil codes are easier to read because they provide only a framework of principles rather than dealing with all possible cases and special contingencies, as is typical of legislation in common law countries.

However, the French civil code provides for all kinds of special cases, including illegitimate children, foundlings, and children of stateless parents. Even so, the French legislation is considerably shorter than the British legislation, and this difference certainly contributes to the greater difficulty associated with the British legislation. Additionally, however, many of the subsections in the UK legislation make reference to other subsections, sometimes ones that are considerably far away in the text, creating disjointed reading, which does not occur with the French code. And, of course, the UK legislation is full of long sentences with complicated syntax that can be difficult to unravel. We talked about reading strategies for trying to comprehend such sentences, and how they would apply to American legislation. At this point we brought in the American nationality legislation and worked a similar problem to see if these reading strategies do actually work well with American statutes. We then discussed the court opinions.

Court Opinions

The students had already read the two opinions and thought about some questions. Both opinions were from intermediate-level appellate courts; one was an English contract case, and the other was a Swedish tort case, provided in an English translation. The questions that the students considered were of two types. The first were nominally reading comprehension questions about the case and the location of certain information. The second type concerned organization and other discourse patterns, comparing the English and Swedish opinions to the American opinions that the students read in other sections of the ELS program.

Because of the inherent murkiness of the task, it was difficult to explain clearly to the students what they were supposed to do and why. Nevertheless, they did a remarkable job of comparing the opinions. They agreed that the Swedish opinion was both easier in some respects and harder in other respects than the American opinions that they had been reading. It was harder in the Swedish opinion to get a clear handle on the facts of the case, what led to the lawsuit, but the outcome of the case was clear from the very beginning because of a different organization and the language was simpler.

We used this discussion of organization to lead into a discussion of reading strategies for American opinions. The students had already recognized at this point in the ELS program that it is often best to start reading an American opinion not at the beginning, but at the end, to find out if the appellate court is affirming or reversing the lower court's decision. However, not all of the students had arrived yet at the strategy of marking up the opinion into sections, even though they could recognize in retrospect that American opinions typically start with a description of the facts of the case, followed by the legal reasoning of the court, taking up one issue at a time. We then discussed the English opinion, using it to talk about other kinds of discourse characteristics. The students readily recognized that the organization of the English opinion was very similar to the American opinions. However, this opinion still seemed different, particularly in its legal reasoning. The English opinion used very long quotations from prior cases, but it contained very little discussion of the similarities and differences between the present case and the prior ones. Nor did it discuss how the principles derived from the prior case ought to apply to the present case. The reader was expected to do this work on his or her own. This textual strategy is very different from the American opinions that the students had read and from the writing techniques that they were taught in their legal writing class, where they were explicitly discouraged from using long quotations with little discussion. In this way, they are able to see that there is more to American legal discourse than just the use of the English language combined with a common law legal system. If they wish to be successful in an American legal environment, they need to understand not only American legal vocabulary and syntax but also American legal discourse structure and rhetorical strategy.

Logistic Challenges

The scheduling of the workshop within the ELS program is a bit tricky. We think that we have hit it right by scheduling it about 2/3 of the way through the program. If we run the workshop later, the students feel that it is a distraction from the final projects in their other courses. On the other hand, if we do it earlier, the students are not yet familiar enough with American legal discourse. One of our aims is to be able to help them stand back and see the forest as well as the trees, but to do that, they have to have some sense of what the trees themselves look like! We feel that there may be a lesson here for other kinds of content-oriented ESP courses, too.

Another difficulty is that textual patterns we look at are abstract and are not the normal focus of legal discussion. The students find the content of legal rules interesting; that is, after all, why they have come to the US. Additionally, they are accustomed to discussing legal issues, but they are not used to discussing the rhetorical practices within which those legal issues are framed. As such, the students' natural inclination is to discuss the legal issues involved in the opinion and legislation exercises rather than the organization and other rhetorical strategies found in the texts, so that keeping the discussion focused can be problematic.

Finally, we share a problem common to all teachers of English for Legal Studies: a dearth of materials. What we have, we have painstakingly developed on our own, although our debts to various legal language researchers are numerous. We would like to have more task-based materials with tasks that are comparable to those that the students will be required to perform in law school and beyond. Such materials are not readily available nor are they so easy to create.

The workshop seems to be successful in helping students develop conscious awareness of the linguistic and rhetorical patterns of American legal discourse. The students enjoy the course, and they keep recommending that the workshop remain a part of the ELS course.

Millett, T. (1986). A comparison of British and French legislative drafting (with particular reference to their respective nationality laws). Statute Law Review, 7, 130-160.

Solan, L. M. (1993). The language of judges. Chicago: University of Chicago Press.

Swales, J. (1990). Genre analysis. Cambridge: Cambridge University Press.