Common law Lawyers should mind their trial practices

1. Common law Lawyers should mind their trial practices Understanding, Identifying, and Correcting a Semiotic Imbalance Edward J. Cyran

2. 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).

3. 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)

4. 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

5. 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

6. 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

7. 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.

8. 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

9. 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?

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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”

16. 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

17. 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!

18. 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

19. 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

20. 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!

21. 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

22. 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??

23. 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).