December 2005
The Language of Law
by Robert C. Cumbow
“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”
— Lewis Carroll, Through the Looking Glass
We speak a strange language in our profession. I suppose law is not so different from other professions in that respect. We use certain words that most nonlawyers rarely if ever have occasion to use (such as “tort,” “laches,” or “quash”). And there are other words to which we ascribe different meanings from most of the rest of society (such as “execute,” “willful,” “malice,” “equity”).
I’m not sure which of those two categories the word “preponderance” fits into. I suspect that most people never use it at all, but I also suspect that those who do use it regard it differently from the way the law does. Its sheer length, especially combined with its incorporation of the term “ponder,” makes it seem as if it should mean “overwhelming weight.” Indeed, one dictionary defines it as “a superiority that outweighs all other considerations.”
In law, of course, the term simply means “the greater weight.” A “preponderance of the evidence” means — as judges, lawyers, and jury instructions repeatedly caution jurors — that the thing alleged is more likely than not to be the case. Unlike the “beyond a reasonable doubt” measure of certainty that applies in criminal cases, the “preponderance of the evidence” measure means that if a jury sees a thing as 51 percent likely to be true and 49 percent likely to be false, they should decide that it is true.
Now no matter how you drum this into jurors’ heads, they have a natural resistance to it. Case in point: A jury recently cleared two New York police officers of sexual harassment of junior officers, but the verdict was thrown out when it was revealed that, during deliberations, the jurors had asked for a dictionary, and the foreman had read aloud to the jury the dictionary definition of a key word.
The word was “preponderance.”
Thus not only may a case turn on the meaning of a word, as I illustrated in a previous column regarding judicial interpretation of the difference between “which” and “that,” but also a mistrial can be triggered by a jury’s reliance on a dictionary definition rather than a legal definition. That’s a profound lesson in how different legal English is from ordinary spoken English.
Plain Talk
For some time now, many have held that there shouldn’t be such a gap between “Legalese” and “plain English.” Indeed, this conviction is the foundation for most law school and CLE legal writing programs, and for widespread efforts to make statutory, regulatory, and contractual writing closer to the language we all speak every day.
California recently became the first state to rewrite its criminal and civil jury instructions from scratch. Several other states are following suit; yet many others still adhere to older, more formal and complex instructions, or have no standard instructions at all.
Some lawyers regard the new California instructions as “dumbed down” and so simplistic as to be actually less clear than the old instructions. Others have applauded the new instructions as likely to improve communication between officers of the court and jurors, and thus improve the chance that justice will be done.
One improvement to the California jury instructions is the elimination of the phrase “preponderance of the evidence” in favor of “more likely than not.” Compare, for example, the old civil instruction on “burden of proof” with the new one:
Old: “Preponderance of the evidence means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”
New: “When I tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as ‘the burden of proof.’”
You can see how the new definition of “burden of proof” incorporates the phrase “more likely than not” and avoids any use of the windy and easily misunderstood term “preponderance.”
To Forget or to Misrecollect
Another of the old California instructions reads: “Failure of recollection is common. Innocent misrecollection is not uncommon.” Now this construction is in itself intriguing, for at least two reasons. First, it demonstrates once again how fine distinctions that many people don’t make at all are not only made but considered extremely important in the law. “Failure of recollection” and “innocent misrecollection” are two different things. Both are opposed to accurate recollection, and both are ways in which testimonial evidence may be false or incomplete without deliberate lying.
The second thing that makes this instruction so interesting is that its drafter chose to use the opposing constructions “is common” and “is not uncommon.” Why, one wonders, was that decision made? To understand, we’d need to know whether “common” and “uncommon” are mutually exclusive terms, or are simply opposite ends of a continuum of possibility. If they are mutually exclusive, then everything is either common or it is not. “Uncommon” means the same thing as “not common.” Thus it would have been clearer, smoother, friendlier, and a lot less pompous to say, “Failure of recollection and innocent misrecollection are both common.”
Now it may be that the author of the original instruction didn’t want to cover both “failure of recollection” and “innocent misrecollection” in the same sentence, thinking that it would be simpler and clearer to devote a separate sentence to each. Fair enough. But the decision to end the second sentence with “is not uncommon” may still be explained in either of two ways. First, perhaps the author thought that it would be boring and repetitious to say “is common” again, or to say “is also common,” so he hit upon the double negative “is not uncommon” as a way of saying the same thing without actually repeating the same words.
But a second possibility is that, to the author, “not uncommon” does not mean the same thing as “common.” Rather, there is a spectrum, at one end of which one finds things that are “common” and at the other things that are “uncommon.” Lying between the two extremes are things that are neither common nor uncommon, and that may thus be fairly described as “not uncommon.” Of course, such things, one presumes, must also be fairly described as being “not common.” The problem with that is that it leaves us in the awkward position of maintaining that “not common” and “uncommon” mean two different things. What the difference may be is anyone’s guess — or perhaps a matter for further speculation, but let’s not burden ourselves with it here.
In any event, it must at this point be amply clear why someone felt that the old rule ought to be rewritten. The author of the new version, in a moment of inspiration, realized that the important point of the original instruction was not how common or uncommon are “failure of recollection” and “innocent misrecollection,” but rather that the two are different phenomena, and the law distinguishes between them for important evidentiary reasons. Hence, the new version:
“People often forget things or make mistakes in what they remember.”
The degree of commonness of these phenomena is relegated to the use of the term “often.” It no longer matters whether these are more or less common occurrences. The important thing is that there are two ways of having your memory fail: being unable to remember something and remembering it incorrectly.
Why is this important?
For the simple reason that the person who has forgotten something knows he doesn’t remember it (when asked about it, he can truthfully say, “I don’t recall”); while the person who misremembers something thinks she remembers it accurately, and doesn’t realize she is mistaken. We begin to see why this distinction is so important, because it goes to the degree of conviction with which a witness might testify, the level of certainty she might have or seem to have, and, ultimately, the witness’s credibility.
Besides showing how, at least in this case, the California rewrite got it right, and produced a much more understandable and illuminating jury instruction, this little exercise also illustrates my earlier point that the law uses words in ways that most people don’t, and that’s because lawyers think in ways that other people don’t. In fact, we go to school for three extra years to learn to think differently from others.
Most folks would figure that either somebody remembers a thing or they don’t, that not remembering it at all is pretty much the same thing as remembering it incorrectly, and that both are examples of “forgetting.” But “forgetting” is just one thing, what traditionally was called “failure of recollection,” and in law, for reasons I touched on above, it is emphatically not the same thing as misrecollection.
You begin to see, I hope, why it is important for jurors to understand this, and thus for it to be explained to them in terms that do not obscure the issue (as the “common”/“not uncommon” pairing in the old instruction did) but illuminate it. Reading the new instruction, anyone can easily see that making a mistake in what you remember is not the same thing as forgetting. In fact, forgetting is not a “mistake” at all, and this fact may also have importance in the weight a juror is likely to give a witness’s testimony.
Keep It Simple — but Take Your Time
It’s important to recognize, though, that simpler and clearer do not necessarily mean shorter. We are talking about the best use of language, not the briefest. To illustrate, one more example:
Old: “Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.”
New: “Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as ‘circumstantial evidence.’ In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.”
Notice that the new version is longer, but that it is also clearer, and, once again, emphasizes the important point that the old instruction’s windiness obscured: that both direct and circumstantial evidence are evidence that a thing has occurred.
Of course the making of fine distinctions and the precise use of language are not the exclusive property of lawyers. It helps when witnesses, too, recount their evidence with precision. Consider the refined legal system of the world of Robert Heinlein’s Stranger in a Strange Land, in which professionals known as “fair witnesses,” such as Anne in the following passage, are paid for the precision of their testimony as expert observers:
“Anne was seated on the springboard: she turned her head. Jubal called out, ‘That new house on the far hill — can you see what color they’ve painted it?’
“Anne looked in the direction in which Jubal was pointing and answered, ‘It’s white on this side.’ She did not inquire why Jubal had asked, nor make any comment.
“Jubal went on to Jill in normal tones, ‘You see? Anne is so thoroughly indoctrinated that it doesn’t even occur to her to infer that the other side is probably white, too. All the King’s horses and all the King’s men could not force her to commit herself as to the far side . . . unless she went around and looked — and even then she wouldn’t assume that it stayed whatever color it might be after she left . . . because they might repaint it as soon as she turned her back.’”
In such a world, the jobs of lawyers, jurors, and judges would be a lot easier.
Robert C. Cumbow is a shareholder with Graham & Dunn, Seattle, where he counsels clients in beverage, food, communications, entertainment, and other businesses on trademark, copyright, advertising, media, and alcoholic beverage law. He teaches at Seattle University School of Law and has written extensively on law, film, and language.
