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Indiana Judges Association: Dealing with different takes on language

David J. Dreyer
December 7, 2011
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IJA-Dreyer-DavidNews item: Pope brings back “consubstantial” to Catholic Mass.

News item: Indiana removes “preponderance” from jury instructions.

What happens when honored traditions collide with contemporary preferences?

A trial judge’s job is often befuddling. We have to differentiate between peoples’ language, their values, even their competing views about what language means. So when the Pope and the Indiana Supreme Court have different views about what direction language should take, what is a trial judge to do?

Regardless of one’s faith preference – or not – this is a lively and vital conundrum. On one hand, we lawyers have plenty of cases and experiences to help us address each case and its issues. On the other hand, how do we deal with the enduring dilemma best expressed by the philosopher Ludwig Wittgenstein: “The limits of my language mean the limits of my world.” (I am now presumably the only Indiana judge ever to quote Wittgenstein.) Consider the following courtroom exchange:

Judge: “Raise your right hand.”

Witness reaches for the stars

Judge: “No, just hold it by your head.”

Witness puts hand on top of head

Judge: “No, hold it by your face.”

Witness puts hand on cheek

Judge: “Let me see the palm.”

Witness holds hand out palm up.

Judge: “Let’s forget the hand thing. Do you solemnly swear …”

Believe it or not, this exchange really took place in an Indianapolis courtroom with a native English-speaking person. Overall, it illustrates a simple gap between the interpretations of commonly used words. In law, we oftentimes call this “statutory construction.” A recent Indiana case shows how strained this can become. On one hand, the court subtitled a section by using the word “propinquity.” (This is now presumably the only Indiana court ever to use the word “propinquity” in the 21st century.) On the other hand, the irony is that the case is about contrasting interpretations of common language in a sentence. The court cleared it all up by writing:

“In any event, while the gerund ‘operating’ is nominally a noun, it is not functioning as such in section 3, but, rather, as the object of the prepositional phrase ‘of operating while intoxicated,’ which is functioning as an adjectival phrase to modify ‘conviction.’ As such, ‘conviction’ is the noun closest to the prepositional phrase beginning with ‘that occurred within … five … years’ and, in our view, is clearly being modified by that phrase as well. In summary, while we acknowledge that word order is important, there is nothing in the word order of section 3 to suggest that the phrase ‘occurred within … five … years’ is intended to modify anything other than ‘conviction.’”

Hmm … I guess there is no “on the other hand” here.

What we mean is not necessarily shown by what we say. Given the inherent enigmas present in any language, one wonders how we prevent a virtual Babel everyday in our courtrooms. Consider this famous courtroom example:

Lawyer: “And lastly, sir, all your responses must be oral. Ok? What school do you go to?”

Witness: “Oral.”

Lawyer: “How old are you?”

Witness: “Oral.”

We lawyers are eloquent, educated, engaging and enigmatic. We sometimes seem most betrayed by our ability. The use of language is the exercise of critique. Similarly, the decision to spare language, or say less, is equally essential to analysis. But lawyers all too often require themselves to propagate phrases and purportedly build language fortresses to protect clients’ interests. Judges, then, are all too often left with the resulting conflagration when the fortress is attacked. Some judges are literally confined to confusion. Chief Justice Joseph Weintraub of the New Jersey Supreme Court once confessed: “I don’t know what it means. I am stumped.” (Of course, he was talking about an insurance policy.) Efforts are often proposed to make the law’s language less worrisome and more humane. But, like the Catholic Church, so much of it comes from Latin, for God’s sake. Here is where we return to our opening question about tradition and current preference. Actually I appreciate Latin – like I appreciate the Mona Lisa. It’s not a dead language, really, but more like preserved in a cryogenic state if we need it. My favorite Latin legal phrase is nudum pactum (naked promise). If I ever start a band, I might name it ultra vires (beyond powers). But the everyday challenges faced by judges are squarely derived from the balance of what is meant by the language of the law and what is meant by the language of the world. My young friends often tell me they are “down with that” when they mean they like something. So when I hear it in my courtroom, I have to make the adjustment, dude. Just like when I hear “propinquity.”•

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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