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Language of the Legal Process

Language of the Legal Process Page Image 350x263 - Jumbled legal jargon in a speech bubbleProject Lead: Dr Tatiana Tkacukova

Effective use of language and communication in the legal process is essential for access to justice.

Yet legal system was designed by lawyers for the use of lawyers. Lay participants in court settings are often alienated by pre-defined interaction rules, strict elicitation processes, references to legal principles and concepts, and use of legal terminology and formal language patterns.

This especially becomes a challenge when lay people have to represent themselves in court, i.e. act as a litigant in person (UK term) or self-represented litigant (US term).

Focusing on communication as an inherent part of court hearings as well as court processes and procedures allows for a holistic approach to DIY Justice. Despite the pressing significance and topicality of the phenomenon, DIY Justice has not been researched in depth yet. Language and communication continue to be largely overlooked, despite presenting an essential part of the common law legal system and civil legal proceedings. Focusing on language and communication processes allows us to understand communication requirements imposed on litigants in person by the legal profession, courts and the legal system.

Linguistic input is essential in the following areas:

  1. Exploring differences between legal and lay language use and communication styles in written and spoken contexts to make specific suggestions on accommodating these challenges during legal proceedings
  2. Investigating communication and elicitation processes inherent in court administration systems, such as eliciting information via court forms, witness statements and other genres or ensuring comprehensibility of court correspondence and guidance materials
  3. Investigating communication and elicitation processes inherent in civil procedure rules and differences in CPR for represented cases, semi-represented and unrepresented cases. The introduction of online routes to justice and virtual hearings will further intensify the reliance on clear communication processes and effective use of language and elicitation strategies within legal proceedings.

Linguistic research methods can equally contribute to the legal scholars’ toolkit for socio-legal studies, administrative law and procedural law. Corpus linguistic tools in combination with such analytical frameworks as Critical Discourse Analysis, Multimodal Discourse Analysis, Conversation Analysis, lexico-grammatical analysis provide an objective top-down approach to analysing textual data. Similarly, observation based research can benefit from incorporating elements from Ethnography of Communication analysis.

Current and completed projects

2013-2015: EU-funded Marie Curie Intra-European Fellowship for Career Development Grant, Centre for Forensic Linguistics, Aston University

The project examined a corpus of trial transcripts from cases with litigants in person tried in England and Wales, USA and Canada. The focus was on communication challenges experienced by unrepresented litigants when conducting witness examination, delivering opening and closing arguments and discussing procedural matters with judges and legal representatives for the opposing party. A part of the project focused on a multi-modal discourse analysis of legal-lay communication in family court as a case study focusing on more specific linguistic aspects in legal settings.

2016: Litigants in Person in the Civil Justice Centre: Access to Legal Information and Advice (in collaboration with CEPLER, Birmingham Law School)

This socio-legal project aimed at litigants in person took place in the Birmingham Civil Justice Centre. As a result of the project, 193 litigants in person filled in questionnaires and 25 litigants in person participated in semi-structured interviews conducted by the research team. The survey and interviews collected information on the demographics of litigants in person, types and character of cases they were involved in as well as their prior access to legal and procedural advice, experience with online sources of information, level of satisfaction and experience with the judiciary and legal representatives for the other party.

2017: Online resources for litigants in person

The project analyses general quality of online legal information targeted at litigants in person. The needs of unrepresented litigants for specific information easily adaptable to their cases are contrasted with what is available online. The project argues that litigants in person need to be enabled to access justice as the users of the system. Accommodating their needs and ensuring clear online information is readily available and signposted is a key starting point (although it cannot substitute tailored legal advice traditionally provided by legal professionals in person).

2018-2019: Aotearoa’s Future Courts: Accessibility and Accuracy in an Online Court funded by New Zealand Law Foundation Information Law & Policy Project Funding (in collaboration with co-applicant with Bridgette Toy-Cronin, Sally Jo Cunningham, Bridget Irvine, David Nichols)

This is a two-year multidisciplinary, multi-institutional study, that looks to a future where New Zealand will very likely join the rapidly growing international trend of introducing online courts for civil disputes. In anticipation of this development, this research aims to lay an empirical foundation for how an online court could support litigants to explain their disputes accurately and clearly. The project includes analysis of district court files, laboratory testing of how lay people vs lawyers explain a dispute, laboratory testing of technology assisted online evidence acquisition.

2018 – 2019: Changing Landscape of Access to Justice: Linguistic and Socio-Legal Analysis of Online Forums for Litigants in Person funded by British Academy/Leverhulme Small Grants scheme (with co-applicat Prof Hilary Sommerlad, School of Law, University of Leeds)

The project uses corpus linguistic tools to analyse online advice provided by McKenzie Friends on social medial and forums aimed at litigants in person. Within the legal community, there are serious concerns raised about the quality of information and advice provided online by MFs or online forum facilitators. Such concerns are especially justified in private and public law children cases, where the well-being and safety of children is at stake. This interdisciplinary linguistic and socio-legal study uses semi-automated text analysis tools to investigate:

  1. Type of information and advice LIPs are seeking
  2. Quality of information and advice they are provided with