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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. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

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