THE LAWYER AS A VIRTUOSO OF LANGUAGE (PART II)

April 08, 2011 5:53 AM

The use of technical concepts has a useful function

Another example is the Directive of the European Commission of 18 February 1985 * adapting to technical progress Council Directive 71/127/EEC on the approximation of the laws of the Member States relating to rear-view mirrors of motor vehicles.

The term “rear-view mirror” in itself means a device excluding complex optical systems such as periscopes, intended to give a clear view to the rear and side of the vehicle within the fields of vision defined in item 5 of Annex III.

There was at some time a Directive proposal to define the parts of shoes, called by some the ‘The two-left-shoes Directive‘, but that proposal was ultimately withdrawn because nobody saw the added value of it. Furthermore, it is interesting to read the Decision of the European Commission of 11 March 1998 for that matter of great political, economic and legal importance (in cases IV/34.073, IV/34.395 & IV/35.436 — Van den Bergh Foods Limited, OJ EC 1998, L 246), in which comprehensive attention is given to the various categories of consumer ice cream. Impulse ice cream for instance consists of individually packaged portions (often on a stick) and individual portions of easy scoop ice cream intended for immediate consumption on or near the place where it is sold.

The use of technical concepts obviously also has a useful function, even though they are sometimes slightly exaggerated. For instance many legal concepts have a more or less established content, so that when they are used it can suffice to mention this term instead of giving a description. An example of this is the concept of a ‘wrongful act‘ (tort). The use of jargon simplifies communication between colleagues. But this also has a paradoxical element: what is clear for the one (the colleague) can be veiled for the other (the layman). An advocate should not only be able to communicate with his colleagues but his duty is also to be able to explain in an understandable manner to laymen (and they are usually his clients) what it is all about. If he handles cases for clients who are in great difficulties, he will also have to show the necessary compassion. But we will not pay any more attention to this here, as indeed many other aspects of the profession of advocacy.

It is striking that the Court documents of advocates which are obviously drawn up in the name of their clients, often include judgements, quite often giving rather an absolute impression and lacking in any subtle distinctions. Only those facts are mentioned or only those Sections of an Act or parts of literature and case law quoted which they think contribute to the substantiation and persuasiveness of their argument (probatio). So they only focus on a part of the reality known by them whereby it is left to the (advocate of the) counterparty (or the Public Prosecution Service in a criminal case) out of all that is known to him to use that which he thinks will benefit his position and negate the argument of the counterparty (refutatio). Although understandable from a tactical litigation perspective this does remain a curious state of affairs.

In that connection it is important to acknowledge that for instance what has been determined by the Court in a civil case as an established fact does not necessarily correspond with the reality outside. This can be demonstrated on the basis of a simple example. If the plaintiff alleged that the defendant damaged his lounge suite and his coffee table when he stormed in a frenzy through his house, while in reality only the lounge suite was damaged, the Court will establish as a fact that the suite as well as the coffee table were damaged when the defendant did not (sufficiently) contest what was alleged by the plaintiff. So when the Court establishes certain facts in its judgement, it does not come down to the establishment of those facts in an absolute sense, but to the establishment of these facts in a relative sense. So these facts are held to be ‘true‘ in the dispute that keeps the parties divided. And this is not a useless but on the contrary a sensible exercise because a sufficiently undisputed factual basis is required in order to be able to reach a decision in that dispute.

For that matter the conclusion should not be drawn from the above that the Dutch Caribbean Courts in civil cases are not interested in the tangible truth; but the extent of the debate is mainly determined by the parties and the principle of passiveness only imposes certain restrictions on the Courts. Despite those restrictions the Court, in a case where it clearly doubts an alleged but non-disputed ‘fact’, will most probably do something about it to produce evidence, for instance in the formulation of an order.

There are also quite a number of advocates, more in the past than nowadays, who probably due to vanity avail themselves of bolbillig cherubijns. Bolbillig cherubijns language use is extremely lavish, pompous use of language (Wim Daniëls, Thuistaal. Het andere Nederlands [Home language. The other Dutch], The Hague: SDU 1992, p. 31).

Although use of high-flown language might probably impress his client and others outside the legal business, it does not guarantee the good outcome of a case. In law it all boils down to the power of the arguments, not their cosmetic appearance, although it should immediately be admitted that an expression of language (the contents of the message) given shape unambiguously and attractively is far more appreciated above an incoherent tangle of words especially if such a tangle looks more like a quest. Anyone who wants to try and convince another person should provide as much insight as possible into his train of thoughts.

However the art of playing with language, a virtuosity possessed more or less by many advocates does not turn them into great literary masters (exceptions are for instance Boeli van Leeuwen and Erich Zielinski). Because of the study they followed and the profession they practice day in day out being continuously and intensively faced with a formal use of the language, non-legal texts of advocates often also lack in sparkle, authenticity and feeling. Most probably the latter will also be partly applicable to this legal blog.

* (85/205/EEC)

Karel Frielink
Attorney (Lawyer) / Partner

6 April 2011

Karel's Legal Blog