COMMON LAW LAWYERS SHOULD MIND THEIR TRIAL

PRACTICESUnderstanding, Identifying, and Correcting a Semiotic Imbalance

Edward J. Cyran

Which legal tradition is more just? Civil Law or Common Law?

A comparative lawyer’s response:“...if [I] were innocent, [I] would prefer to be tried by a Civil Law court, but if [I] were guilty, [I] would prefer to be tried by a Common Law court.”- A Civil Law Tradition, Merryman and Perez-Perdomo (2007).

An Artificial Discourse What is it? How is artificial discourse different than

natural discourse? Decision-making process in communication

(authority vs. all people) The character of a sign’s meaning (serving a

goal of the discourse vs. pure development)

The Reality of Legal Discourse An institution achieves its goals by

employing functionaries to define meaning.

Institution = Government Goals = Justice, control, division of

resources, etc. Functionaries = Authorities = Master

Signifiers Examples

Legislators Judges (Appellate and Trial) Juries

Who can participate in legal discourse?

Only those who communicate with the functionaries can influence the meaning of signs in discourse. Examples

Lobbyists Lawyers You

How is legal discourse limited? Whenever communication is limited and

the bounds of discussion narrowed, the semiotics of a process changes because potential meanings of signs are restrained.

Common Law Stare Decisis – A Sea of Precedent Constitutions Legislative History Public Policy

How is legal discourse limited? Civil Law

The Core Precept of Civil Law Interpret the code with clarity, coherence, and

consistency to uphold the law. [Past rationales personally used by a judge Truncated decisions of the ECJ or any superior

court (only because judge seeks to avoid reversal)]

The Civil lawyer is not permitted to brief the judge on the above two aspects of legal discourse.

Why are juries different? Do not consider precedent Not educated on precedent Only authority is in the application of the

facts of the case to the law

Greimassian Narratives Elementary structures of signification

exist in the deep structure of all discourses

Legal discourse does not have a deep structure, i.e. a genotext

Nonetheless, juries are still influenced by Greimassian narratives. So, is such a structure of signification existing in the phenotext of legal discourse?

The Actantial Model – A Model of Experience

Greimas identified the deep structure as being thematic, with the process of meaning occurring in the narrative form

Greimas believed that we begin each thought with a “goal” (the goal doesn’t have to be discernible at first)

Each goal involves a sign or semiotic object as its “subject”

The subject then proceeds through a narrative with actors influencing it

The narrative completes with a reflection upon the experience

The Actantial Model – A Model of Experience

Human action (whether real or fictional) thus appears meaningful in terms of a basic (“narrative”) sequence, which consists in the setting of goals (“contract”), “performance” (or non-performance) of those goals, and “recognition” of that performance (or non-performance)

-- Bernard Jackson, An Outline of Greimassian Semiotics

The First Narrative – The Story in the Trial

Fact-finders, whether juries or judges, process the factual story presented by the lawyer as a narrative

They also process the factual story presented by opposing counsel as a narrative

Subject = Fictional character of the Defendant or Plaintiff/Victim

Goal(s) = Fictional goal(s) that are expressed or implied by the storyteller; goal(s) that the fact-finder independently conceives

The First Narrative – The Story in the Trial

Performance of Goals = What happens to the subject during the narrative

Recognition/Reflection upon Performance = Takes place in jurors’ minds after hearing the story

The First Narrative – The Story in the Trial

With respect to the “Story in the Trial,” no semiotic differences exist between Common Law and Civil Law

Jury listens to the story like the Civil Law Judge does, and then applies the facts to the law

The Second Narrative – The Most Significant Difference

In Civil Law countries, lawyers cannot ask the witness questions, whether by direct or cross examination

This difference in procedure severely limits, if not eliminates, the second narrative – “The Story of the Trial”

The Second Narrative – The Story of the Trial

“Counsel, are you prepared to open?” “Yes, Your Honor.” ... and it starts

Welcome to “The Commonwealth v. Van Fleet” On the charge of Impersonating a Police Officer Starring Plaintiff’s Counsel and Defendant’s Counsel Watch closely as they:

Compete with each other Try to persuade you by their words and actions Minimize each other’s arguments and tell you what

“impersonating a police officer” really means in this case

The Second Narrative – The Story of the Trial

Also watch closely as they: Object to each other Argue with the judge Guide the witness through his or her testimony

on direct examination Cross-examine the witness in a way that makes

you feel like the attorney is the one telling the story

Don’t miss the Final Act!

The Second Narrative – The Story of the Trial

What does this narrative do?? It manipulates meaning No longer do you, the fact-finder, consider

only the story in the trial, you consider the story of the trial

And not only that, but you consider all of the stories of the trial; including the one starring you, the jury

A Semiotic “Imbalance” The existence of an unwanted effect upon

the development of meaning caused by any practice or procedure

An unwanted effect in legal semiotics is one that damages the development of meaning, thereby carrying a substantial risk of preventing the law from being administered—that is, preventing it from realizing its goal of determining whether the defendant did or did not do something illegal

A Semiotic “Imbalance” The potential for a semiotic imbalance in

discourse exists when the discourse is susceptible to misuse, i.e. susceptible to the manipulation of meaning by an individual or a group of individuals

But, why care? The ultimate goal of both the Common Law

and Civil Law is certainty Inaccurate application of the law to facts

means that the law is not certain—and if it is uncertain, law is a meaningless endeavor!

A Semiotic “Imbalance” Two levels of understanding this phrase:

Within the legal tradition The effect on the development of meaning

(obfuscation of meaning) Between the legal traditions

Civil Law avoids the situation, while Common Law has it

A Semiotic “Imbalance” More scholarship is needed

Where else do such manipulations of meaning occur?

If a Common lawyer mindful of semiotics was to try to avoid obfuscating meaning, what would he do? Anything different? Would clients hire that lawyer??

Which legal tradition is more just? Civil Law or Common Law?

“...if [I] were innocent, [I] would prefer to be tried by a Civil Law court, but if [I] were guilty, [I] would prefer to be tried by a Common Law court.”- A Civil Law Tradition, Merryman and Perez-Perdomo (2007).