If you like thinking about the way lawyers use words and how and why that usage is different from the way normal people, er, I mean, non-lawyers use words, take a moment this Friday afternoon to read Language Log’s take on the New Jersey case of a slip-and-fall verdict overturned because a law professor subsequently wrote an article about his experience on the jury, including his efforts to help explain what “proximate cause” means.
Seton Hall Professor Robert J. Martin served as jury foreman in this grocery store slip-and-fall case. Subsequently he wrote about the experience for the New Jersey Law Journal. Reading that article led an appeals court to overturn the verdict he was involved in reaching.
In Language Log, Robert Shuy points out that,
I’d guess that most of us, perhaps lawyers included, don’t have a very good idea of what “proximate cause” means. The late highly respected legal analyst, David Mellinkoff, called this term of art “concise gibberish” (The Language of the Law,((1963, p. 401).
Well put. In fact, I’d remove the “perhaps,” because no one can have a very good idea of what “proximate cause” means. The more you study it, the more you realize that it is inherently imprecise, purposefully hard to understand. It lacks an inherent meaning. Like many legal terms of art (and other professional jargon), “proximate cause” defines a blurry line.
Shuy makes a useful point about the silliness of barring jurors from getting useful definitions of legal jargon, ending the post this way:
So how are jurors supposed to interpret judges’ confusing and complex jury instructions? The Barber jury got an unexpected bonus by having an attorney help them figure some of it out. It seems unfortunate, if not unproductive, that the standards of law apparently prohibit juries from learning about legal concepts that are crucial to the trial but unknown to them. It must have been difficult for Martin to tell them something like, “It’s concise gibberish and an elusive term of art.” No matter. Even if Martin had been able to give his fellow jury members a precise, non-elusive, non-gibberish explanation, he apparently deprived the defendant of a fair trial.
There’s got to be a meaningful lesson here.
Perhaps the most meaningful lesson is that such jargon should be removed from jury instructions altogether, replaced with plain language, as plain language revisions of jury instructions try to accomplish.
But I wonder if there is also a lesson here for lawyers. Of course, good lawyers often have to use the relevant jargon, because the cases we rely upon use it, and we need to mimic that language to connect our arguments to that precedent and to make our arguments heard. But if the law concerning proximate cause is any indication, the law’s saturation with concise gibberish gets in the way of lawyers’ and judges’ understanding as much as it did these jurors’.
Jargon is useful if all the people who use a term know what the term means. Jargon is not good if it has no meaning.
Clarity is an international association that promotes plain legal language. In 2005, I wrote an article for their members about ASD simplified technical English. The article explains how controlled language ensures that text is clear and has only one meaning. Read the article on http://www.clarity-international.net/journals/53.pdf.
Thank you so much for that comment! You made my point, much more concisely than I did. I recently joined Clarity and have read the last three issues of the journal. I learn a lot with each one, and the writing is a pleasure to read.
Mike, how useful is jargon like “proximate cause” when its users can’t agree on its meaning?
Tom, if ‘proximate cause’ has no agreed meaning, then the term is useless.
In the world of science and engineering, if there is a possibility of confusion or disagreement, we define the terms that we use. Then, there is no argument.
Mike, I guess my point was not so much that the term proximate cause does have an “agreed meaning”–it means something like, “the type of cause for which we will allow liability to attach.” So for instance, you could say, “his failure to sweep up the banana peel was a proximate cause of her injuries,” meaning, he may be liable to her. So it serves some purpose for lawyers, allowing them to refer to that abstract concept in shorthand. The trouble is that the underlying concept is not well defined, the reasons for extending or limiting liability are not well understood or agreed up. My point was that lawyers’ and judges’ use of this shorthand rather than forcing ourselves to spell out the reasons why liability does or does not attach might be one of the reasons that proximate cause law is such a mess.
Quote: My point was that lawyers’ and judges’ use of this shorthand rather than forcing ourselves to spell out the reasons why liability does or does not attach might be one of the reasons that proximate cause law is such a mess.
Jessica, thank you for your clarification.
I can see why not specifying the reasons for liability causes problems. I guess it’s equivalent to not defining what we mean by words such as ‘large’ or ‘expensive’. My ‘large’ is your ‘small’. My ‘expensive’ is your ‘cheap’. However, if we say 17.3 miles and $4.99, there can be no confusion.