1.3.1 Legal Process and Legal Profession

The collection is organised around two themes which are at the heart of communication and legal practice: legal process and legal profession. This structure turns the focus to linguistic insights which can have a direct impact on what happens in courts and in agencies and institutions across the wider justice system. In an effort to highlight the applicability of linguistically informed research to legal practice, the collection steers away from the more conventional themes commonly used across existing publications in language and law – themes defined by linguistic topics or communicative events (e.g., multilingualism, interpreting and translation, courtroom discourse, police interview discourse). Promoting the focus on legal process and profession allows the collection to prioritise research questions and topics which arise in legal practice on a day-to-day basis and thus directly affect those who are embedded in institutional practices (e.g., lawyers, judges, police investigators, interpreters) and those who rely on the system to deliver justice (e.g., litigants, witnesses, defendants). This practical, problem-solving focus results in many chapters drawing on multiple datasets and combined analytical approaches, which only emphasises the complexity of issues pursued and the variety of linguistic applications relevant to legal practice.

An additional advantage the chosen structure presents is an opportunity to highlight the continuity between law, language and the wider socio-political agendas with which law interacts through linguistic framing and wider discursive practices. It foregrounds topics which have received a lot of attention in legal literature and research, but so far largely to the exclusion of in-depth linguistic input. Such topics include access to justice and due process for self-represented parties (Grieshofer, Greenlee); vulnerable witnesses (Wright et al.) and defendants (Greenlee, Ruyters et al., Ng); out-of-court legal advice (Reynolds, Smith-Khan); criminal evidentiary rules (Capus et al., Haworth, Walker); court procedure rules (Grieshofer, Ferraz de Almeida & Barrett, Wright et al.); public legal education (Grieshofer, Heffer & Coulthard); legal reasoning (Leung, D’hondt). As a result, the collection creates organic crossovers between linguistic and legal research agendas, increasing the visibility and relevance of what has perhaps traditionally been viewed as purely linguistic research.

The two themes of legal process and legal profession are, of course, strongly interconnected, so the division here into separate Parts is inevitably an artificial one. The distinction we seek to make is between (Part I) communicative aspects which can be categorised as relating to the underlying structures, frameworks and procedures of justice as an institution – or more accurately, a series of institutions; and (Part II) the communicative roles, practices and choices of individuals whose professional responsibility is to navigate and uphold that system.

In Part I, the focus on process enables this section to highlight common issues with evidence production procedures and to explore opportunities for enhancing procedural fairness and access to justice for those interacting with the justice system. Embedded in these procedural steps are language-related themes, which include communicative challenges during legal–lay interactions (Greenlee, Grieshofer); linguistic disadvantage due to the use of nonstandard language varieties or non-native language use (Walker, Ruyters et al., Ng, Capus et al.); and invisible agency over a suspect’s own voice as presented in evidence (Capus et al., Haworth, Walker). Collectively, the chapters reflect on common misconceptions about language deeply enshrined into everyday legal processes.

Part II builds on Part I by emphasising that the legal profession is part of the institutional equilibrium and its communicative practices are defined by established legal processes and procedures. The focus here turns to professional practices and the discursive choices legal professionals make, either as part of institutionally accepted procedural boundaries or as part of individual choices due to procedural or institutional flexibility. The socio-cultural and socio-political dimensions equally feature strongly as part of legal professional culture. The themes thus mirror many of the core themes from Part I, with the focus shifting to institutional roles which legal professionals perform when communicating with lay audiences and decisions they make when guided by legal processes, procedures and professional practices. As a result, we revisit the linguistically driven themes of legal–lay communication (Heffer & Coulthard, Wright et al., Reynolds, Smith-Khan) and linguistic disadvantage, vulnerability and language rights (Leung, Wright et al., Reynolds, Smith-Khan); and procedurally driven themes of pre-court evidence construction (Reynolds), court procedures (Heffer & Coulthard, Ferraz de Almeida & Barrett, D’hondt) and due process (Leung, Ferraz de Almeida & Barrett).

We will now turn to a detailed consideration of the contributions of each chapter.

1.3.2 Part I: Communication and Legal Process

Grieshofer initiates Part I by focusing on the core feature of adversarial legal systems, the principle of orality (the right to be heard in a public hearing) and its procedural, legal and discursive function in the justice process. Chapter 2 challenges how orality is understood as a theoretical and systemic principle and how it is implemented in civil legal practice by examining distinct court procedures linked to orality across private family proceedings and small claims cases in England and Wales. A common scene across county and family courts is parties who have to represent themselves due to financial constraints and lack of legal aid funding, and so these ‘high volume’ types of proceedings impact high numbers of citizens, whose court experiences shape their trust in the justice system (and likelihood of compliance with court orders), only increasing the expectations from the principle of orality. Conceptualising orality as a communicative process and establishing its communicative stages and aims enable the chapter to scrutinise orality in pre-court stages and court hearings and identify procedural measures that weaken court users’ access to procedural fairness. Further drawing on the linguistic concepts of voice projection, elicitation and narrativisation, the chapter illustrates the impact of specific procedure rules on the extent to which court users are enabled to present their stories in a legally relevant way. Grieshofer concludes that it is important to consider communicative practices, including evidence elicitation practices, as part of court procedure rules and, more broadly, the systemic design of the justice system to ensure the effectiveness of lay court users’ legal participation.

In another example of a legal–lay communicative context, in Chapter 3 Greenlee explores discursive practices in Faretta waivers in capital trials in California, US. Faretta waivers apply to cases where the defendant wishes to renounce their right to an attorney and to self-represent, and the chapter examines procedural steps carried out by courts to check the defendants’ comprehension of the consequent risks. Drawing on lexico-grammatical analysis of the wording used in Faretta waiver forms, and discursive analysis of the court hearings where judges discuss defendants’ wishes as expressed on those forms, the chapter raises serious concerns as to whether the typical populace in capital cases would comprehend the wording or consequences of self-representation. Although the procedure is designed to safeguard defendants on their access to justice journey, the process is rendered ineffective by lack of attention to linguistic detail. Greenlee puts forward a strong argument in favour of reforming the language of the process in order to meaningfully explore defendants’ comprehension and motivation for self-representation, drawing parallels to positive changes introduced with the help of linguistic input in Miranda warnings and jury instructions.

In Chapter 4, Capus et al. explore communication-related challenges in a different type of context, namely police covert surveillance investigations involving multilingual communication, focusing on the role that ‘intercept interpreters/translators’ play in the process. Using data from Switzerland, the chapter takes us through several procedural stages of evidence processing, in which intercept interpreters/translators have to perform several challenging communicative and institutional roles: listen and make judgements on the meaning of intercepted communication intentionally or circumstantially rendered ambiguous to anyone not party to the interaction; collaborate with police investigators to assist in deciphering the meaning of the original communication; and produce translated written records which may be used as evidence in court. The chapter highlights that although intercept interpreters/translators thus play an active role in supporting police investigations, the resulting versions of the intercept reports do not explicitly acknowledge their input or presence in the process. Further, the authors demonstrate how the original interactions undergo several recontextualisations, shifting the mode, language, authorship and audience design. The chapter argues that clarifying the institutional boundaries of the roles of intercept interpreters/translators will introduce a much-needed transparency to the process, and even simple steps such as explicit identification of the translated extracts in legal files will be beneficial for upholding due process and the rights of suspects and defendants.

In Chapter 5, Haworth equally challenges evidence production practices in criminal proceedings by focusing on what happens in England and Wales to mandatory audio recordings of police-suspect interviews. The chapter draws on both interview data and focus groups with practitioners to examine how the choices made by police transcribers turn them into active participants in the official written record, yet, as with Chapter 4’s interpreters/translators, they are largely invisible in the criminal justice process. The chapter draws our attention to the paradox between, on the one hand, the robust training police interviewers undergo and the stringent legal protections around interviewing suspects and, on the other hand, the ad hoc linguistic choices transcribers are free to make when producing the evidential record of that interview interaction, which can distort the original meaning or intentions of interlocutors. To illustrate the risks involved, the discussion focuses on three practices of transcribers: summarising stretches of talk instead of producing a verbatim transcript; summarising procedural preliminaries at the start of the interview (such as delivery of the caution, and conveying rights around legal representation); and omission of markers of emotion. This highlights that, despite the many legal and procedural safeguards around the audio/video recording of police-suspect interviews, the administrative process of conversion to a written record can unintentionally undermine those efforts. However, the chapter also illustrates how linguistic input into addressing underlying misunderstandings about language and the conveyance of meaning has the potential to make a vital contribution to improving the quality of criminal evidence.

Walker (Chapter 6) further probes the practice of evidential transcript production by evaluating the comparative accuracy of verbatim transcription of Black and Standard American English by private transcription companies used by US courts. Drawing on experimental methods, and including both human and AI-generated transcripts, the chapter demonstrates significant shortcomings in verbatim transcription of male speakers of Black American English, a demographic which is substantially over-represented in the US justice system. The chapter illustrates that the resulting transcripts display significant meaning-changing alterations due to the lack of understanding of dialectal and cultural differences in phonetics, grammar, vocabulary and cultural realities (e.g., typical names), leading to evidentially serious mistakes such as adding non-existent people to the scene. The lower accuracy scores for Black English transcription are contrasted against the common legal practice of relying on verbatim transcripts as an official and finite record, leading to miscarriages of justice in a series of previous US court cases in which Black English speakers were misunderstood or misquoted. The author advocates for better training in non-standard varieties of English for transcribers (both machine and human); legal consideration of the admissibility of such potentially unreliable evidence; and increased awareness among legal professionals about distinctions between Black and Standard American English, so that expert input is sought when Black English is used as evidence in the criminal justice process, in order to affirm accuracy and avoid injustice.

Shifting the focus from interdialectal comprehension to interlingual comprehension, Chapter 7 focuses on judicial assessments of English language proficiency in Australian criminal cases involving the admissibility of police interviews conducted with suspects whose first language was not English. Drawing on judgments in cases where there was no interpreter at the police interview stage, but language was subsequently raised as an issue at trial, Ruyters et al. critique judges’ methods for assessing defendants’ linguistic proficiency at interview. The chapter considers a series of such cases in which the police interview was either accepted into evidence or rejected, mapping these judicial evaluations against recommended standards for assessing whether a person needs an interpreter in court proceedings. This analysis illustrates inconsistencies in approach across the two contexts and also from case to case. The authors raise concerns about the potential for injustice, especially given the significant role of police interview evidence admitted at trial. They note that expert linguistic evaluation is rarely sought, and that judges tend to be overconfident in the quality of their own ‘common sense’ assessments, which the authors attribute to ‘judicial exceptionalism’. The chapter thus encourages the adoption of expert language competence assessments and application of the existing standards for assessing language ability for court proceedings when determining admissibility of interview evidence, in order to improve accuracy and consistency in judicial decision-making.

The theme of due process for non-native speakers is continued in Chapter 8 by Ng, who probes into the contentious issue of providing interpreting for jurors in the multilingual jurisdiction of Hong Kong, where due to its colonial past English is firmly established as an official language of court proceedings, despite most of the population being speakers of Cantonese. The chapter argues that interpreting for jurors is essential in a jurisdiction where around 90% of the population are essentially excluded from serving as jurors due to being non-English speakers or having limited English proficiency. This linguistic exclusion brings the educational, ethnic and socio-economic divide into the courtroom, inhibiting the democratic function which the lay participation of jurors in the justice system is designed to fulfil. Drawing on consecutive appeals of a court case which involved the provision of simultaneous interpreting to jurors during the trial (which had the potential to set a significant precedent for the provision of interpreting for jurors in Hong Kong), the chapter reflects on the misconceptions among the legal profession about comprehension issues in multilingual settings and discusses the challenges and opportunities interpreting for jurors raises. The author advocates that to ensure the defendant’s right to a fair trial, it is important to provide interpretation for jurors both to ensure their comprehension of court proceedings and increase the representativeness of juries; the chapter also encourages the adoption of a fully electronic system of simultaneous interpretation to ensure that the original and interpreted versions are recorded so that the accuracy and adequacy of interpretation can be assessed.

1.3.3 Part II: Communication and Legal Profession

Part II begins with a return to the themes of juror comprehension and legal-lay communication, as Heffer and Coulthard turn the focus to judicial discursive practices in conveying the criminal standard of proof to juries in England and Wales (Chapter 9). They argue that the ordinary word ‘sure’ has become a technical legal term, which therefore cannot serve the intended purpose of communicating the correct legal meaning clearly to jury members. Applying linguistic theories around comprehension and the conveyance of meaning to critique court judgments, case law and professional practice manuals, and drawing on their own involvement as linguistic experts in a Court of Appeal case on this issue, they identify a series of legal discursive practices which give rise to this position. The authors aim to increase awareness among legal practitioners that simply transplanting ordinary language into a legal context in order to perform a specific institutional task is not the solution to conveying technical legal meaning since this will inevitably imbue those words with a new and different meaning. The chapter comes to the conclusion that to aid the jury with understanding and accurately applying the criminal standard of proof, a template explanation should be formulated which explains this fundamental legal concept in terms which can be understood by all.

Professional discursive practices when interacting with lay people are further explored in Chapter 10 by Wright et al., who turn their attention to the signposting of topics in the cross-examination of vulnerable witnesses. The starting point for the chapter is recent professional guidance encouraging advocates to explicitly signal topics and topic shifts to vulnerable witnesses in order to reduce potential confusion or distress; itself a recognition of the interactional power held by a cross-examiner. Drawing on transcripts of 56 cross-examinations from six Crown Court Centres in the UK and Ireland, the chapter uses a corpus-assisted approach to analyse the trial discourse, in particular applying the linguistic concept of ‘metadiscourse’ to evaluate how advocates are implementing this guidance in practice. The authors identify the most common lexical bundles used by counsel to signpost topics, finding that they are indeed used more frequently for vulnerable witnesses; however, through detailed analysis of cross-examination sequences, the chapter identifies a series of ‘interactional problems’ which can arise as an unintended consequence. The chapter’s insight into how such communicative strategies actually function interactionally will hopefully lead to more nuanced guidance and recommendations for professional practice.

Moving the theme of professional courtroom discursive practices onto the global stage, in Chapter 11 Ferraz de Almeida and Barrett turn their attention to judicial interventions in the International Criminal Court (ICC). The procedural amalgamation of the ICC’s international jurisdiction, which combines elements of adversarial and inquisitorial legal systems, makes the judge’s role procedurally more flexible, erasing clear distinctions between the roles of truth-finder and referee. Drawing on verbatim transcripts from the witness examination stages of the trial of Dominic Ongwen (a commander of the Ugandan rebel movement convicted of war crimes and crimes against humanity), the authors explore how the judge manages the interactional challenge that this ‘unstable amalgamation’ presents. Through turn-by-turn analysis of the judge’s questioning practices during witness examinations, the authors show how the judge uses the wide discretion afforded to him by the ICC’s procedural rules to shift his participation status through, for example, moving into the questioner role in objection sequences and reformulating questions himself. The chapter demonstrates how detailed linguistic analysis of actual instances of courtroom communication can illuminate our understanding of how the ICC’s attempt to blend distinct legal cultures gives rise to challenges and opportunities, especially for practitioners.

In Chapter 12 D’hondt also explores the ICC context, highlighting that it is through linguistically mediated practices that international criminal proceedings are enacted simultaneously as part of the legal process and the wider global socio-political context. Drawing on the concept of contingency in poststructuralist discourse theory and linguistic anthropological work on intertextuality, the author shows that semiotic and substantive aspects are intertwined in the process of discourse production, leading to the discourse of legal proceedings entering into a dialogue with socio-political realities. Analysis of examples from trial hearings and judgments showcases how discursive practices such as the entextualisation of witness testimony and recontextualisation in judgments, and the preferential framing of legal argumentation in accordance with a fitting socio-political agenda, are used to support legal decisions. The author contends that it is time to accept the fact that ICC cases are inevitably interconnected with political agendas, but that this ‘radical contingency’ should be actively utilised rather than resisted. The chapter demonstrates how a deeper understanding of the discourse of ICC hearings can contribute to this endeavour.

Continuing the theme of the socio-political positioning of courtroom discourse, in Chapter 13 Leung explores the political dimensions of official language rights in multilingual jurisdictions, focusing specifically on the right to use a particular language in legal proceedings. The author examines the varying ways in which judges have chosen to deal with contestations over language rights in court, drawing on cases from Northern Ireland, Brittany, Canada, South Africa, New Zealand, and Hong Kong, among others. The discussion documents the different paths taken when legislating linguistic hierarchies, ranging from jurisdictions where minority languages have managed to gain official recognition by challenging established language practices, to multilingual jurisdictions without formally enforceable language rights for non-priority languages, to those where the choice between official languages is highly politicised. The chapter argues that the socio-political function of recognising official languages in a country’s constitution or legislation should be fully acknowledged to avoid unnecessary contestations, such as when proficiency in the majority language leads to excluding bilingual speakers from exercising their rights in the minority language. The author advocates for the importance of judges upholding official language rights in court, bringing benefits which extend well beyond the symbolic.

In another example of applying linguistic ethnography to an underexplored legal discursive context, in Chapter 14 Reynolds sheds new light on the communicative processes which lead to the production of witness statements used as evidence in immigration visa application and appeal cases. Detailed analysis of the interaction between an immigration lawyer and their client, mediated through an interpreter, illustrates how the resulting written statement is co-constructed collaboratively between these three participants, each of which makes an essential contribution to producing the final text. Given that witness statements in this context are about personal circumstances interlaced with cultural references, the analysis demonstrates that the question/answer narrative co-construction of the client’s account involves cultural as well as linguistic mediation to ensure the statement is authentic, credible and communicated in a manner which will be legally persuasive to immigration tribunal members. Focusing in particular on metacommunication, the chapter highlights the importance of the communicative work undertaken by the lawyer, especially in building mutual trust and understanding in working towards the institutional goal. Overall, the chapter makes an important contribution towards understanding that co-construction of linguistic evidence by members of legal and related professions can be a positive and supportive enterprise, bridging cultural, linguistic and legal-lay misunderstandings.

Building on the theme of intercultural communication in immigration settings, in Chapter 15 Smith-Khan considers the vocational training of future immigration advisers in Australia, focusing on how they navigate (mis)understanding in simulated client consultations. Using a range of ethnographic methods, including observing training workshops and conducting interviews with participants, the chapter explores the various linguistic and extralinguistic factors which cause misunderstandings in these simulated interactional situations. Arguing that misunderstandings are common in naturally occurring interactions, especially if they cover complex topics and involve interactants with little shared knowledge, varying linguistic proficiency or differing cultural backgrounds, the author highlights that it is erroneous to automatically lay the blame at the door of L2 status or ‘culture’. Instead, the chapter demonstrates that the misunderstandings are often perpetuated due to the interactional choices made by the trainees, especially due to the challenges of managing multiple competing discursive priorities such as establishing the facts, providing advice and constructing their own professional identity. The chapter makes a compelling case for how linguistic input can assist practitioners in learning how to manage these complex and dynamic professional contexts better, through enhanced awareness of the interactional sociolinguistic factors at play.