Plain Language Translations of American Divorce Law
179present, then it is typically litigated all at once. But if there is more than
one fact situation, then the issues should be litigated separately.
Law students are taught syllogistic analysis in the form of “IRAC” or
Issues, Rules, Analysis, Conclusion. The analysis portion is sometimes
referred to as Application, meaning application to a specific fact situation.
Legal rules are replete with legal terms. Law students assume, until
practice shows them otherwise, that these legal terms have nice,
Aristotelian boundaries. The job of the lawyer is basically to see that the
facts are interpreted by the judge to place them under a rule favorable to
his client. Then the syllogism can be applied and the client wins.
So the legal frame is not just a place where words can have different
contextual meaning and specialist terms are used. The legal frame also
includes the need to frame arguments into the IRAC formula. Much legal
jurisprudence has dealt with the difficulty of that task (Minda 1995).
Also, law professors have sought to find how legal terms can be used,
and many have come to grips with the need to face the heavy use of
analogy. One interesting note in this regard: Law Professor Lloyd L.
Weinreb wrote a notable book Legal Reasoning: The Use of Analogy in
Legal Argument (Weinreb 2005). But he did not discuss cognitive
linguistics and all it could offer to the conversation. He notes, almost in
passing in an appendix, the work of George Lakoff and Mark Johnson on
conceptual metaphor. He further states that Steven Winter applies this
work “with striking results,” but it is clear that he completely missed
Lakoff’s and Winter’s chapters on prototype and radial extensions, even as
he cites their works (Lakoff 1987, Winter 2001, and several others). I
frankly think it was too difficult for Weinreb, and indeed for many, if not
most, lawyers and judges, to grasp the implications of prototype theory. To
them, the legal frame must be protected at all costs.
Perhaps it is time for that to change and to use the positive and ongoing
developments in cognitive linguistics to help improve access to justice, to
improve a specialty so that it serves its citizens rather than its specialists.
Conclusion
Plain language translations of American divorce law, especially as
exhibited here with court forms used in divorce litigation, exhibit in stark
detail both the portions of American divorce law’s specialist language that
are easily susceptible to plain language translation and those portions that
are not.
Generally, the portions that are readily translatable are those for which
the litigants already have a basic understanding of the concepts involved.