Wednesday, September 15, 2021
British Philosopher Michael Oakeshott thought of the law (and other social institutions, for that matter) as a language. In language as in the law, there are heated debates about what the rules are and the proper rate at which to change them. But rather than wade into that here, I want to focus on the law as a language that lawyers learn to speak. I think that there are three main branches to this language: logic, grammar, and rhetoric.
First, logic. In many ways, law students learn the law as children learn a language or a new game—by observation and imitation. Some have an easier time of it than others. We’ve all met them; they are the ones who just “get” law school from day one. Annoying. I wondered for some time what it was that these students were getting exactly that so many do not. I’m now convinced that it’s mostly that they intuitively understand logical reasoning. But many of the best players can’t tell you how to do what they do; they just know how to do it. This is also true of native language speakers—most aren’t able to say why something is right or wrong in speech, they just have a feel for it.
While going the feel-for-it route may be fine for most day-to-day legal tasks, the best lawyers I know are more conscious about the logical rules that they are following in arguments. They can tell you the specific reason that arguments are fallacious, not just that they are wrong. The more logical rules that you can articulate and use, the more effective you will be.
Second, grammar. Here the language analogy is a bit on the nose, but it holds up well. I’ve learned a couple of languages beyond my native English, and every time I do, I understand English a bit better. Before I was forced to understand things like the subjunctive mood or declension forms, I never really learned the whys behind my speech and writing. At bottom, the law is just words. And the fine details of grammar and punctuation matter. A company can lose millions of dollars because their lawyer didn’t use the Oxford comma in a contract. The result in a case may turn on which words in a sentence a modifier applies to, or whether a drafter used a semicolon or a comma, or any other number of fine grammatical distinctions. One federal judge even recently ordered parties to diagram a statutory sentence to reach a decision.
Most lawyers couldn’t diagram a sentence without a fair bit of googling, and to be sure that’s a rare case. But fewer lawyers than should can lay out grammar and punctuation rules and why they matter. Those who can have the advantage, in statutory interpretation cases in particular.
Finally, rhetoric. Since at least ancient Greece, people have explained the rules of persuasion—the patterns of speech that make it appealing to a listener/reader. Repetition can be pleasing (“of the people, by the people, for the people”) or it can be grating (“Baby shark, do do do do do do”); it is all in the execution. Some are natural orators (Eliza Doolittle’s father comes to mind), but most have to work at it. The lawyers who do will be more persuasive, to both judges and juries.
I’m willing to bet that no reader here had a course in law school explicitly focused on logic, grammar, or rhetoric. Perhaps that’s because there just isn’t time. Or maybe it’s not practical to explain a game that is easier to learn (at first) by playing. But every lawyer should spend some time learning these rules. This is doubly true for appellate lawyers, who rely so much on these tools to convince courts—who are often full of the sort of lawyers that understand and care about the fine distinctions.
 Stanford Encyclopedia of Philosophy, Michael Oakeshott, available at https://plato.stanford.edu/entries/oakeshott/#RatiRati.
 See Bryan A. Garner, Making Peace in the Language Wars and The Ongoing Tumult in English Usage, reprinted in Garner’s Modern English Usage, xxxiii-lv (Oxford University Press 2016).
 Jeff Haden, How 1 Missing Comma Just Cost This Company $5 Million (but Did Make Its Employees $5 Million Richer), available at https://www.inc.com/jeff-haden/how-1-missing-comma-just-cost-this-company-5-million-but-did-make-its-employees-5-million-richer.html.
 See, e.g., Lockhart v. United States, 136 S. Ct. 958 (2016).
 Mike’s Smoke, Cigar & Gifts v. St. George City, 391 P.3d 1079, 1084 (2017).
 Dara Kam, Legal Battle Over Florida Protest Law Could Come Down to ‘Language and Syntax,’ available at https://www.wlrn.org/news/2021-08-25/legal-battle-over-florida-protest-law-could-come-down-to-language-and-syntax.