Legalese in American courts

Two articles on legalese in court: from the ABA Journal, RITUALISTIC BOILERPLATE – Simplicity Beats Legalisms in Communicating With the Jury, BY JAMES W. McELHANEY:

bq. “Directing your attention to the 14th of August, 2002, I ask what, if anything, you did on that occasion?” Instead of starting a question with “Directing your attention to” a particular date, just tell the witness you are going to ask some questions about that day.
Then get rid of “if anything”—an annoying habit that prosecutors all over the United States have developed on the thought it keeps a question from being leading. But it’s unnecessary boilerplate because the question isn’t leading in the first place, and if it were, “what, if anything” wouldn’t fix it.
Now your question sounds natural: “Mr. Johnson, we are going to start by talking about Aug. 14 last year. What did you do that day?”

Then the Los Angeles Times (registration required but free) on July 18, has an article by Jean Guccione, ‘Relief Coming for Jurors Ill at Ease With Legalese
A state panel OKs simple civil jury instructions. Criminal courts are next.’ New California jury instructions – example:

bq. Existing: ” ‘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.”

bq. 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.’ “

3 thoughts on “Legalese in American courts

  1. I was wondering about the term: Preponderance of Evidence that I thought – at last year’s FIT Congress – had been made up in Uruguay by the Law Trans. Prof. at Montevideo Uni whose paper I heard. Now I see it comes from the US.

    It’s a pity that the New California court officers weren’t at our ITI Congress at Cambridge a few years ago where I was at pains to draw a distinction in my talk between the BURDEN of proof resting on the prosecution/ defence or on the claimant/ defendant – the burden can shift from one side to the other during trial or be agreed pre-trial – and the STANDARD or level of proof on the civil ‘bal. of probabilities’ or crim. standard of ‘beyond reasonable doubt’.

    Lord Denning once famously suggested during his lifetime a standard lying somewhere in-between in civil fraud cases – a controversial proposition that refuses to go away in the UK.

  2. That was one of the earliest things I taught people when I was teaching legal translation and English (with a bit of U.S.) law – that balance of probabilities in England and Wales is a preponderance of the evidence in the U.S.A.
    Well spotted! And the distinction between burden of proof (Beweislast) and standard of proof (no German equivalent – I think we said Maßstab) too.

    Denning’s statement during his lifetime – I fear that you imply he is still opining from the grave?

  3. Thanks. Lord Denning did refer in the Eng. civil case of Miller v. Minister of Pensions (1947) to the ‘preponderance of probability’. His halfway-house proposition came in Hornal v. Neuberger Products Ltd (1957). He also applied a ‘slightly loaded civil standard’ (NB not burden) in the later case of The Michael (1979).

    I can’t remember the details, but other Eng. judges have picked up on – before going on to discount – his ‘third standard of proof’ that is referred to in just about every UK law of evidence textbook and course syllabus.

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