Chapter Seven
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Rather than list instances of jargon problems (as I had already
discussed “plaintiff” earlier in this paper), I merely wish to point out to
terminology researchers that the field is wide open for work. I would
caution such researchers though to note the difference between the initial
trials of cases and the corpora that develop from them as distinct from the
corpora that come from appellate opinions and their related briefs.
Generally, at the trial stage, most of the work of the court is determining
the facts, while at the appellate stage, most of the work of the court is
determining whether the law was correctly applied. Even issues about
facts at the appellate stage are almost always discussions about court
procedure, rather than the truth of the facts themselves.^15
Re-use of common words as terms
As can be seen from Table 1, many common words are re-used by legal
specialists as specialist terms with meanings that are different from the
commonly held meaning. Most such usages can be explained by the
etymology of the word. Nevertheless, their use creates confusion in non-
specialists. The field is ripe for linguistic exploration. Here is a short note
on one such term.
The term “shall” is often used in statutes and court forms to mean that
the person is directed to do something. It is a command. The history of
usage of “shall” is interesting, as noted by Dictionary.com:
The traditional rule of usage guides dates from the 17th century and says
that to denote future time shall is used in the first person (I shall leave. We
shall go) and will in all other persons (You will be there, won't you? He
will drive us to the airport. They will not be at the meeting). The rule
continues that to express determination, will is used in the first person (We
will win the battle) and shall in the other two persons (You shall not bully
us. They shall not pass). Whether this rule was ever widely observed is
doubtful. Today, will is used overwhelmingly in all three persons and in all
types of speech and writing both for the simple future and to express
determination. Shall has some use in all persons, chiefly in formal writing
or speaking, to express determination: I shall return. We shall overcome.(^15) Although he writes primarily in the area of constitutional law and mostly
concerns himself with appellate opinions such as data, I recommend the work of
Law Professor Steven Winter (e.g., Winter 2001) as perhaps the best representative
of deep discussions about terms from a cognitive linguistics perspective. He is
particularly adept at applying the principles of prototype theory and radial
extensions.