Word and Object

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Legal “Excuses”

October 24th, 2006 by David Kronemyer · No Comments

I was thinking some more about J. L. Austin (see previous post, “Comments on ‘A Plea for Excuses,’” and it occurred to me that lawsuits, and litigation, are the ultimate example of an aberration, something going wrong. Now, I dislike lawyers as much as the next guy, but stay with me here, like Dante with Virgil in the Inferno, while I try to follow through on this line of reasoning.

Parties enter into a business transaction. Disagreement arises, and lawsuits break out. The plaintiff’s burden, at least initially, is to state facts sufficient to constitute a cause of action. “A complaint … shall contain … [a] statement of the facts constituting the cause of action, in ordinary and concise language,” Cal. C. of Civ. Proc. §425.10(a). [I think the word “comprising” would be a better choice here, than the word “constituting.”] Let’s assume the plaintiff meets this burden. What’s the defendant to do?

Well, he has two alternatives. Faced with the plaintiff’s complaint, the defendant must admit or deny all material allegations. “A material allegation in a pleading is one essential to the claim … and which could not be stricken from the pleading without leaving it insufficient,” Cal. C. of Civ. Proc. §431.10. That sounds confusing, with a triple-negative, but what it means is that if you could strike the allegation, and the pleading still was sufficient, then the allegation isn’t material. Once he has figured this out, “The answer to a complaint shall contain the general or specific denial of the material allegations of the complaint controverted by the defendant,” Cal. C. of Civ. Proc. §431.30(b)(1).

However, even if the defendant admits that everything the plaintiff says is true, he still is permitted to set forth “A statement of any new matter constituting a defense,” Cal. C. of Civ. Proc. §431.30(b)(2), that is, affirmative defenses. These affirmative defenses, if proven, will tend to diminish or defeat the plaintiff’s recovery, even if the plaintiff is fully capable of establishing a prima facie case.

Affirmative defenses therefore are the legal system’s equivalent of Austin’s excuses. The defendant admits the plaintiff’s allegations, but also says: even so, consider this. For this reason, many commercial transactions can best be analyzed, by looking at the affirmative defenses available to a party, in the event of litigation. By thinking first of ways in which he can get his client out of the deal, the business lawyer will do a better job of negotiating and drafting agreements to prevent disputes, to begin with.

I think Austin would agree with this approach, though with at least two important caveats. First, the variety of excuses acceptable in real life is far more vast than the affirmative defenses cognizable in a court of law. This is to be expected, because fortunately, our legal system does not yet, at least, purport to pass on everything. And second, just because we can take a transaction apart, doesn’t mean we can paste it back together, like some latter-day Humpty Dumpty. To put this in “logical” terms, the negation of a proposition is often far from equivalent to the opposite of its affirmance.

Let me explain a little more clearly. Predicate calculus has bequeathed to us a bizarre formulation known as the “law of the excluded middle.” No, it’s not some new kind of diet. Rather, it’s the proposition that the entire universe of logical entities can be expressed by the proposition {p v –p}.* In other words, everything in the world either is the table I’m writing on, or something else.

However, as Austin is careful to point out, this kind of negation is inappropriate when we start talking about real-world occurrences. “Involuntarily” is not the opposite of “voluntary.” “Consciously” is not the opposite of “unconsciously.” Reason why: we apply, and use, these words differently. One can come up with any number of examples, of this sort.

Austin’s technique of breaking down actions into their various components, and then analyzing the constituent parts, also leads us right into the law of evidence. Another illustration of Austin’s principle of “no modification without aberration” is the “excited utterance” exception to the hearsay rule. A “hearsay statement” is one made by a witness other than while testifying, which is offered to prove the truth of that which is asserted. Cal. Evid. C. §1240 provides:

“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) purports to narrate, describe, or explain an act, condition or event perceived by the declarants; and (b) was made spontaneously while the declarants was under the stress of excitement caused by such perception.”

In other words, “excited utterances” can be offered for the truth of that which is asserted. Example: If I come across you as you’re getting out of your car, having just run over your neighbor’s prized jacaranda bush, and you say, “Good God, I really smashed that one,” this statement can be introduced at trial, even if you don’t testify. It can be offered not only to show you were agitated by the circumstances (which is something other than for the truth of the matter, and hence not hearsay), but also to prove that you did in fact run over the jacaranda bush. It’s also, incidentally, an admission, which is another exception to the hearsay rule.

Why in the world should excited utterances be trustworthy, at least, more so than ordinary utterances? Well, one reason is that they wallow up, if you will, directly from the ready-to-hand, without the intervention of any conscious activity. There is no time to fabricate a story. Something happens – the aberration – and there is an immediate assertion, or modification.

The excited utterance example also illustrates another point, which is that there is no necessary connection between thinking and language. You just open your mouth, and words roll right out, without too much thought. [This is, of course, a characteristic of lawyers, in general.]

Analyzing where these words come from, and the ways in which any one string of utterances is “better” than any other – with reference to a specific objective – is one of Austin’s main tasks, at least, later on. Here’s an example, from Robert A. Wenke’s famous book, The Art of Selecting a Jury (1979). He is discussing voir dire, or the process during which the lawyers interrogate potential jurors. He says:

“Be direct, yet diplomatic. Ask, for example, “Is it Miss, Ms., or Mrs. J?” Instead of “Are you married?”; “Mrs. J, is there presently a Mr. J?” (This covers divorcees as well as widows.) Never ask a pregnant woman if she is a Miss or a Mrs.”

The first question that comes to mind is, so what? What’s the point? I mean, they both get to the same issue – have the same propositional content, if you will. According to Austin, we now have reached the nub of philosophical analysis – to see why we say different things, and why different utterances are appropriate for different situations.

Wenke is concerned with a very practical task, that is, one of the steps in convincing an ultimate trier of fact. The illocutionary act being performed is that of “persuading.” A certain formulation of words might be more conducive to accomplish this result, than some other. If that’s the case, then it’s the one that should be adopted. [Note that neither expression is “true” or “false.” Rather, we employ a different set of criteria, such as “efficacy,” for evaluating them.] I’m reminded of a great remark from John Fowles: “Language is like shot silk; so much depends on the angle at which it is held,” Fowles, J., The French Lieutenant’s Woman (1969).

If there is a practical moral to Austin’s work, at least as far as lawyers are concerned, it is just this. Say what you mean, and mean what you say. A litigator is an advocate of interests. His (or her) mission is to persuade an ultimate trier of fact. Why adopt a formulation or expression, which isn’t conducive to that result?

The problem then becomes one of deciding between competing expressions. Faced with two phrases, both of which “say” the same thing, which one do you use? At the risk of overextending myself, I would like to formulate a general rule: use the simplest one possible. I say this not to demean ultimate triers of fact. Rather, I say it because, given their radically different backgrounds and experiences, it is well nigh akin to a miracle that people are able to use the same language to communicate, at all. The more attenuated one’s use or application of a particular phrase or utterance, the less likely one is to be understood.

There is a related principle, which is as follows. Once you’ve said it, stop. There is too much oration. Much of legal writing is unnecessary. I would wager there is not a brief in the world that could not be cut by at least 50%. Too often, talking after you have made your point – or even saying anything at all – can jeopardize your position.

This is a famous rule of cross examination: “The mark of the master is to do as little as possible; the courage to stand up and say, ‘No questions,’ when there is nothing to be gained by cross-examination, is the mark of supreme mastery,” Younger, I., The Art of Cross-Examination (1976).

But this also ties in with the mundane practice of most everyday lawyers. Much of their time is spent drafting long, involved declarations, or points and authorities, which tend to stray rather far from the basic objective: to win the motion. Sometimes, by saying too much, the litigator gives the other side ammunition, which they then can use against the client, for example, in a subsequent deposition. In fact, properly considered, each page of declaration probably is worth about an hour’s time in deposition, when properly taken apart. “On page two, you say thus-and-such. How do you know? Have you considered? What if?” Etc. In this way, the inarftul declaration writer gets hoisted on his own petard. He (she) says things he (she) may not mean. Or, he (she) means them in one specific context, but then fails to limit the scope of application, and thereby gets committed to meaning them in other analogous contexts, which may not be true. There is a needless proliferation of unnecessary entities, and concepts. It is hard enough to clearly understand those already hanging around – the inevitable detritus of the client’s position.

In conclusion, I would simply like to point out that anything I have said, or for that matter, anything that Austin says, does not necessarily imply a methodological conservatism. You can have the craziest entities that you want, in your conceptual scheme. Just make sure there aren’t too many of them, and that you can explain what they are. Many people think that if you put, say, twelve people in a room, with instructions to deliberate, then it’s inevitable they’ll come to a conclusion. [Unfortunately, a sub-species of individuals known to hold this belief are called “judges.”] However, impasse can occur, even though we understand each other perfectly. It’s not always just a matter of saying the same thing, using simpler words, and perhaps slower cadence, with a louder tone of voice. Using the same tools, all of us can reach different conclusions.

In this way, Austin is at the forefront of what loosely has come to be known as “hermeneutic analysis” – that is, interpreting and understanding phenomena in the context in which they occur. Or, to paraphrase Wittgenstein, it doesn’t matter what might be the case, it’s what is the case, that counts.

*Though some people called “intuitionists” maintain that, when you’re talking about potentially infinite classes of entities, especially mathematical ones, disproof of a universal statement is not automatically a proof of its denial. Rather than bouncing off the roof, as it were, of a closed set, you’ve got to start the proof from the ground up, because you literally don’t know where the outer limits are. This has some important consequences, but more on that later.