ILNews

Indiana Judges Association: Dealing with different takes on language

David J. Dreyer
December 7, 2011
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  2. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  3. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

  4. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  5. Tina has left the building.

ADVERTISEMENT