In Pursuit of an Expert Identity: A Case Study of Experts in the Historical Courtroom

There are certain areas of study where present-day semiotics of law can learn from history. This study examines the discursive history and historical courtroom discourse of expert witnesses in eighteenth-century American court. The aim of the study is to explore the use of linguistic strategies and resources in constructing an expert identity in relation to the factors which influence those choices. Instead of taking expertise as being lodged in the pre-given label, such as a doctor, this article argues that such an identity has to be constructed and negotiated, and reveals how such an identity is constructed and negotiated through trial talk during a hostile discursive environment. The historical courtroom is an interesting site in this regard, as it was the period when expert witnesses did not enjoy the same social status as their present-day peers, which came with the absence of discursive privileges as well. It is found that experts mainly relied on expansions of response as the resources to counterbalance skeptical attitudes and hostile attempts aimed to undermine their testimony that accompanied their vulnerable status and image and to gain discursive control during the interaction.     

Pragmatic Discourse and Gender Inequality in China

Using courtroom dialogs from actual court trials in China as data, this article analyzes an emerging “pragmatic discourse,” deployed by judges to assist, but at the same time to constrain divorcing women. Through questions, statements, rebuttals, and other interactional devices, Chinese judges define the premises that underpin the law's understanding of gender equality and women's welfare. By looking at how discourses are deployed by judges and litigants, we link micro linguistic practices to more general social forces and processes. Despite their honest effort to protect women's rights, Chinese judges often inadvertently reinforce and reproduce the patriarchal norm. The data demonstrate how the hegemonic patriarchal order reasserts itself in an institutional forum that is meant to promote gender equality. The interaction of the discourses also highlights the tensions in Chinese society and displays the effect of changing social environment on the legal operation.     

Legal ethnography: Exploring the gendered nature of legal method

Beginning with the idea of law as discourse, this essay examines the ways in which legal method is gendered. Texts, such as affidavits and court forms, and local ‘mundane’ practices are part of the production and affirmation of the law as a producer of truth. A possible methodology for exploring legal method, ‘legal ethnography,’ is introduced as a means by which wemight explicate how legal method works to support and reify legal discourse, in the process silencing the voices of women. The essay also explores how legal method comes to be accepted as a ‘tool of the trade’ by lawyers, who then use it to translate the primary narrative of the client into a cause of action that is comprehensible to lawyers, judges, and other actors in the legal system. Finally, the limitations of the proposed methodology are considered.     

Judicial misconduct

Although judges are subject to the same human frailty as all other members of society, they must expect their conduct to be the subject of constant public scrutiny. This article examines instances of judicial misconduct in the USA. It considers various aspects of misconduct including humour, courtroom management, denigration of lawyers, racist speech, sexual harassment, acceptance of gifts, alcohol misuse, and financial conduct. These illustrations of misconduct by judicial colleagues are intended to serve as cautionary tales from which judges in other jurisdictions can learn lessons as they to seek to act in a manner that promotes public confidence.     

Reporting sensational trials: Free press,a responsible press,and cameras in the courts

It is common today to criticize the media for the way in which they report sensational trials. Lawyers often join in this criticism, claiming that the portrayals harm their public image. This article examines such complaints and demonstrates that including cameras in the courts need not lengthen a criminal trial, nor substantially affect the judicial process. Using the O.J. Simpson criminal case as a backdrop, the article shows how delays in that case were caused not by cameras, but by the judge's inconsistent rulings that signaled to the defense lawyers that they were under a different and more lenient standard than the prosecutors. Surveys of American judges show that those who have experienced cameras in their own courtroom have come to the conclusion that such media coverage does not impede justice, aids the public in understanding the judicial process and has little effect on American's perceptions of lawyers. Those judges who have the urge to play to the cameras should ban them, but if they do not, the blame lies with them and not the media, which simply report what is happening.     

Law talk: Juveniles' understanding of legal language

This article reports and discusses the findings of a study conducted at the pretrial stage in the Winnipeg juvenile court (Province of Manitoba, Canada) to determine: (1) what legal words or phrases commonly used in courtroom hearings juveniles understand; (2) whether there is a relationship between juveniles' understanding and sense of justice (fairness); (3) whether judges, lawyers, and probation officers believe that legal language affects a juvenile's understanding of the courtroom hearing; (4) what legal terms or phrases these key actors see as most important for the juvenile to understand; and (5) whether there is a relationship between what juveniles understand and what key actors see as the most important legal terms or phrases that a juvenile needs to understand. Juveniles' understanding is moderate and is confined to procedural terms. A strong relationship does not exist between what juveniles understand and the terms that key actors view as needing to be understood.     

Trial Advocacy Competence: The Judicial Perspective

The competence of attorneys, and more particularly the competence of trial lawyers, is currently an issue of considerable controversy both within the judiciary and within the legal profession itself. This article addresses the issue of attorneys' courtroom performance as observed by judges. Drawing on data from a survey administered to state and federal judges sitting in trial courts of general jurisdiction, this article explores the relationship of demographic and judicial characteristics to various judicial evaluations of advocacy competence. While it provides important insights into the present state of trial advocacy competence, it also constitutes a systematic examination of the judiciary's perceptions of the trial bar.     

Conceptions of Agency in Social Movement Scholarship: Mack on African American Civil Rights Lawyers

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)—namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites only. Mack focuses especially on the tensions of this role in courtrooms, where African American lawyers were necessarily called upon to act as the equals of white judges, opposing counsel, and witnesses. Mack's thesis, focused on the contradictions and tensions embodied in the performance of a racially loaded identity, reflects the influence of postmodern identity performance theory as articulated by Judith Butler and others. Mack and others belong to a new generation of civil rights history scholars who are asking new questions about contested identities related to race, gender, sexuality, and class. This essay offers an evaluation of this new direction for civil rights scholarship, focusing especially on its implicit normative orientation and what it contributes to the decade‐old debate over how to conceive of agency in social movement scholarship.     

Judging the Other: The Intersection of Race,Gender, and Class in Family Court

This critical ethnographic study of family court child maltreatment proceedings describes and illuminates the ways in which racial, gender, and class disadvantages can manifest on the ground as judges, attorneys, social service workers, and parents—joined often by gender but split by race and class—adjudicate cases. The findings suggest that intersectionality worked in ways that exponentially marginalized poor mothers of color in the courtroom. They were marginalized both through the rules of the adversarial process (which silenced their voices) and through the construction of narratives (which emphasized individual weakness) over structural obstacles as well as personal irresponsibility over expressions of maternal care and concern. Standard due process courtroom practices also communicated bias or social exclusion, especially in a courtroom split by race and class.     

离婚案件审理中法官话语的性别偏向

运用听审记录和访谈资料进行的话语分析,向我们展示了离婚案件审理中法官话语的男性偏向,其深层次原因包括:照顾弱者政策的执行受到女性形象转变的冲击、中国日趋格式化的司法体系缺乏对性别意识和女性话语的关注,以及法官话语性别议题背后的权力配置。通过对这些因素的揭示与分析,希望促进人们对司法领域中失语群体的关注,从而有助于构建更为完善合理的司法体系。     

“This Argument Fails for Two Reasons…”: A Linguistic Analysis of Judicial Evaluation Strategies in US Supreme Court Judgments

The centrality of argumentation in the judicial process is an age-old acquisition of research on legal discourse. Notwithstanding the deep insights provided by legal theoretical and philosophical works, only recently has judicial argumentation been tackled in its linguistic dimension. This paper aims to contribute to the development of linguistic studies of judicial argumentation, by shedding light on evaluation as a prominent aspect in the construction of the judge’s argumentative position. Evaluation as a deep structure of judicial argumentation is studied from a discursive point of view entailing the analysis of a sample of authentic judicial language. Evaluative lexis is investigated within a single genre of judicial discourse, i.e. judgments, instantiated by a corpus of US Supreme Court judgments. Findings show that judges use diversified strategies to take stance as they organise their argumentative discourse: from easily recognisable verbal and adjectival tools to more finely-grained discourse elements such as the encapsulating pattern ‘this/these/that/those + labelling noun’.     

Lawyers as infrastructures: mediations,blockages, and new possibilities in grassroots movements

What roles do lawyers play when their own subaltern communities are mobilizing for justice? Drawing on the case of anti-eviction mobilization on the island of Al-Warraq in Egypt, this article investigates the infrastructural roles of community lawyers in grassroots movements. As their profession transformed into an underpaid and undervalued occupation, masses of lawyers became precarious professionals living subaltern lives. Living among the poor with the elite knowledge of the law enabled community lawyers to forge new relations between the grassroots and the elites, the streets and the courtroom, and farmers and the national media. Drawing on an ethnography of the movement, I posit that community lawyers operate as social infrastructures: liminal subjects in uncertain times, capable of generating new possibilities and social relations. As social infrastructures within their communities, they shape the opportunities for action, facilitating new modes of resistance while blocking others.     

法官与律师关系规范化刍议

目前正在全国展开的律师队伍整顿工作将规范律师与法官的关系作为一项重点工作,拟通过教育、监督、惩治律师来彻底规范法官与律师关系的观点已得到普遍的认可。将规范律师执业行为作为切入点的做法,固然能对建立正当的法官律师关系起到一定的促进作用,但更为关键与根本的措施还在于严格规范法官依法行使审判权。围绕这一论点,论证了规范法官审判行为何以应当成为规范法官与律师关系的根本点;分析了少数法官在与律师职业交往中得以进行权力寻租的成因;并从平衡法官与律师的地位、增强律师对法官的监督与影响、阻却个别法官司法专横与防范司法腐败的角度,对规范法官与律师关系提出了一些建议。     

Face-work in Chinese routine criminal trials

This article examines the performative aspect of face-to-face interactions among various legal actors and defendants in routine criminal trials in China. Using 105 trial videos as empirical data, the author develops a face-work framework to understand how an individual judge's “face”—signifying judges' legal and political roles, and their professional status—is established, protected, and enhanced during courtroom interactions. The study shows that the legal face of judges can be established by some characterizations of the nature of criminal trials such as the demarcation of legal space, the speed of the trial, and the apprising of rights to the defendants. Nevertheless, the legal face can also be disrupted by trial interactions due to judges' lack of judicial authority. Hence, Chinese judges maintain their authority through the establishment of their political face. They also use both their political face and legal face to establish their situational professional status. These interactions often lead to punitive and coercive measures against defendants in trials. While the article focuses on routine criminal trials in China, the face-work framework has the potential to explain courtroom interactions in other types of social contexts and legal proceedings.     

The Politics of Benchcraft: The Role of Judges in Mental Health Courts

Mental health courts (MHCs) offer community‐based treatment in lieu of criminal prosecution for chronic offenders with psychiatric disabilities, and MHC judges enjoy expanded powers to achieve the court's objectives. Because scholars know little about how judges transition into a new occupational role in the problem‐solving courtroom, this ethnographic study of four MHCs in the United States focuses on how judges learn to orchestrate their responses to treatment noncompliance in this novel court setting. The goal of this article is to examine the professionalization of MHC judges and the emergent craft of therapeutic adjudication. To achieve this goal, I investigate judicial strategies for motivating, questioning, and defending participants accused of wrongdoing. I conclude that the art and practice of problem‐solving justice requires judges to rise to the larger institutional challenges embedded in the alternative courtroom, a process I call the politics of benchcraft.     

Poetic Justice: An Interpretation of Lawyers’ Reactions to Verse Judgments

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression.     

Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings

Do immigration lawyers matter, and if so, how? Drawing on a rich source of audio recording data, this study addresses these questions in the context of U.S. immigration bond hearings—a critical stage in the removal process for noncitizens who have been apprehended by U.S. immigration officials. First, my regression analysis using a matched sample of legally represented and unrepresented detainees shows that represented detainees have significantly higher odds of being granted bond. Second, I explore whether legal representation affects judicial efficiency and find no evidence of such a relationship. Third, I examine procedural and substantive differences between represented and unrepresented hearings. My analysis shows no differences in the judges' procedural behaviors, but significant differences in the detainees' level and type of courtroom advocacy. Represented detainees are more likely to submit documents, to present affirmative arguments for release, and to offer legally relevant arguments. Surprisingly, however, I find no evidence that these activities explain the positive effect of legal representation on hearing outcomes. These findings underscore the need to investigate not only what lawyers do in the courtroom, but also less quantifiable factors such as the quality of their advocacy, the nature of their relationship to other courtroom actors, and the potential signaling function of their presence in the courtroom.     

Managing victim status in group therapy for men: a discourse analysis

In contrast to the abundance of research on women victims, this article sheds light on the discourse of men who are self-identified as victims of their female partners' abuse. The purpose of this study was to investigate the most salient identity constructions and abuse conceptualizations among participants of group psychotherapy for men who have been abused in intimate, heterosexual partner relationships (i.e., Calgary Counselling Centre's 14-week group program titled "A Turn for the Better"). The men's identity work was examined using the methods and theoretical perspective of discourse analysis. Analysis of the talk demonstrated that the group agenda was to work through the ambiguity of abuse in the service of having the men identify themselves as victims. Thus, both the men and the group facilitators actively constructed "true victim" subject positions through their resistance to commonsense orientations of (a) "men as perpetrators" and (b) whether abuse consisted of more than physical violence. The therapeutic language of resistance was a common strategy used to manage victim status but also required further negotiation as it entailed a component of abuse (i.e., risked positioning the men as abusers rather than victims). The discussion focuses on how these findings may differ from the identity work present in women victim therapeutic groups. In addition, we note that it is difficult to uphold the victim-versus-perpetrator dichotomy in therapeutic discourse.     

Imagining New Social Legal Futures: A Sociolinguistic Analysis of Pre-Law Students’ Experiences with Discourse Communities of Legal Practice

This paper considers the ways that concepts such as social justice and law were used as semiotic objects-in-tension by a group of five US undergraduates considering law school to make sense of their ideas about entering the discourse communities and communities of practice associated with being a lawyer. This group was made up of undergraduate women who had completed a summer residency program sponsored by the Law School Admissions Council to increase enrollment of students from under-represented groups. Of the five participants, two were US-born; the others immigrated to the US as teenagers; each was aware of her position as multiply marginalized, by gender as well as other factors, including refugee or immigrant status, religious affiliation, sexual identity, and/or association with “at risk” labeling. Data analyzed reflect a 3-year study of their changing perceptions of their relationships to law school discourse communities, using text, interviews, individual video narratives, and informal, face-to-face group meetings. A sociolinguistic approach to multimodal discourse analysis is used to examine the ways that the women, each in a unique way, articulated an increased investment in direct and embodied engagement, lived experience, and personal testimony—not as supplements to doing/being a lawyer, but as necessary and expected practices therein. Over time and through various modalities, they used their vantage point from outside the dominant discourse communities of law to stage social critique and to contest the binary logic and normative criteria that forge the boundaries of exclusion from and inclusion in these communities. Specifically, they resemiotized notions of being a lawyer from the margins in ways that demanded a more fluid and polysemous interpretation of what it means to do ethically rigorous social justice work—hence reworking the relationships between justice (as an abstract ideal) and the law (as an institutionalized regime) and widening the semiotic potential of their own future work. Particularly significant are the ways that semiotic trajectories progressed from an emphasis on what Halliday identifies as textual (fixed and highly abstract) functions of language to interpersonal (embodied, relational) and ideational (expressive, experiential) functions. Such a trajectory away from entextualization suggests that voices and perspectives from the margins may be using those imaginary margins tactically as sites from which to contest the boundaries that define whose voices count within the legal system and to contest normative limits on semiotic potentialities for lawyers working toward more just social futures.