Law & Language: Miranda warning or warnings?

Post by Profs. Stephen Horowitz and John Dundon, Georgetown Legal English Lecturers

Despite teaching the same Two-Year LLM program Legal English course the past three years (same content, different sections), my esteemed colleague Prof. John Dundon and I just realized we differ on whether, when focusing on the line of criminal procedure cases and Miranda rights during our Legal English II course, the correct version of the phrase should generally be plural (i.e., Miranda warnings), or whether it is also acceptable for it to be singular (i.e., Miranda warning.)

I won’t say who was advocating for which side, but the argument for exclusively plural was that the Miranda v. Arizona opinion includes multiple items for which a warning must be provided, including the right to remain silent and the right to an attorney. The argument against was that the multiple items can be viewed collectively as one warning.

The only civilized way to settle this debate between two lawyer-linguists, of course, was to follow the descriptivist path of looking to the corpora.

Using the entire internet as a corpus (i.e., a Google search of the phrase “a Miranda warning”), it seems to support the use of the singular, as the phrase appears in the Wikipedia entry for Miranda Rights as well as in news articles (e.g., NPR; NYTimes), on legal info sites (e.g., Cornell Law School Legal Information Institute; usconstitution.net; NOLO.com), and on law firm sites (e.g., D’Emilia Law – “What is a Miranda Warning.”)

So do those arguing for the exclusive preference for the plural have the right to remain silent? Not without first consulting an attorney. In fact, nine of them.

If the corpus is instead the line of Miranda cases from our course, all of which were decided by the U.S. Supreme Court–the esteemed body that originated Miranda rights and its associated language–then suddenly we see an extremely strong predilection for the view that Miranda is actually comprised of several warnings, which suggests that the plural may in fact be correct. And the singular version is then just a vulgar mutation that has been adopted by the masses. (Or, stated more objectively, a variation that has been adopted in less specialized settings.)

So what’s a lawyer-linguist legal English teacher working with Miranda cases to tell their students? Our takeaway is to just share this blog post with them so they recognize that the appropriate form–single or plural–likely depends on the context and the audience.

If you’re writing a brief for the court or you’re a judge writing an opinion or perhaps a law professor writing a law journal article, then plural seems the preferred option. But if you’re writing a news article or a client email or having a cocktail party conversation, then singular is would seem to be just fine.

If you disagree with us, then you have the right to consult with an attorney-linguist. And if you cannot afford one, then we will be happy to provide you with one of course.

The (mis-)use of “Besides,…..”

Post by Stephen Horowitz, Professor of Legal English

I have nothing personal against the conjunctive adverbBesides,….”

However, I’ve frequently noticed that “Besides,…..” is used by some foreign-trained LLM students in lieu of connecting phrases such as “Additionally,….” or “Furthermore,…..” And the students don’t realize that “Besides” has a different feeling and nuance, and is not an equal substitute for other connecting words used to signal that the sentence is adding information related to the previous sentence.

For example:

(Ex. 1) “The US Constitution granted the federal government with certain enumerated powers, while the state governments were granted residual powers. Besides, the federal government and the state governments share some common powers as well.”

(Ex. 2) “In this case, Jason was in his home with two officers sitting across from him at the kitchen table, and the officers’ car’s police lights were flashing for all to see. Besides, Jason’s mother was marking making breakfast in kitchen, which means his mother leave left Jason alone to talk with the officers.”

As a result, I find myself frequently providing corrective written feedback along the following lines:

“Besides,….” is not the connecting word you should use here. A better word would be “Additionally,…” or “Furthermore,…..”

Although we do use “besides” to communicate to the reader that we are adding more information, “besides” also feels less neutral and more informal than a word like “additionally.” It feels kind of pushy, like trying to persuade the other person by appealing to the their sense of personal connection to you.

For example, “Come on, let’s go see the movie tonight. It’s Friday night and you’re assignment isn’t due for a week. Besides, all of our friends are going to be there.”

In the above sentence, “Besides” works well in communicating the intent to persuade. It’s appropriate between friends when one friend is trying to push the other friend into changing their mind. But this informal, pushy feeling undermines your credibility in legal writing when your intention is just to add more information, e.g., one more reason or example, and let the example itself help with the persuading.

In other words, “besides” is saying more to your reader than you probably intend to say. For these reasons, I suggest using “Additionally” or “Furthermore” (among other options) as a connecting phrase in your legal writing rather than using “Besides,….”

I find myself writing this kind of comment so frequently, in fact, that I finally decided it would be more time effective to just write a blog post about it so that I can always share with my students in the future. Besides Additionally, now other legal English and legal writing instructors can use this as well, if it helps make their work a little easier.

In the meantime, if anyone ever figures out what English language textbook or publisher keeps teaching “besides” as an exact synonym for “additionally,” please let me know so I can lead an effort to try and address the problem at the source.

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Bonus: This language (mis-)use example reminds me of when I taught English in a middle school in Japan years ago. From my well-meaning supervisors I would occasionally hear statements like, “You had better sit down now.” Or, “You had better eat the food now.” Each time I wondered why they were threatening me, even though a threat seemed unnecessary in the situation. But then I realized their English classes must have taught them that the phrase “(you) had better” is a synonym for “should.” And it is. Sometimes. But sometimes it can also sound like an organized crime family member making a veiled threat. Thereafter, I told myself, “You had better get to the source of that misinformation before leaving Japan.” But alas, I never did.

Oh well, in both instances it could be a lot worse. Besides, at least it gives me something fun to write about!

Linguistic analysis of great vs. average legal writing

Post by Stephen Horowitz, Professor of Legal English

As a legal English professor in Georgetown’s 2-Year LLM Program and a “law & language” nerd, I greatly appreciate any efforts to analyze and identify concrete elements of legal writing that help distinguish the quality or genre of the writing. (See, e.g., some of my experiments with ChatGPT and legal writing as a grammar fixer and on cohesion.)

For my international LLM students, this kind of information can be exponentially more helpful to understand that, e.g., dependent clauses can help one’s legal analysis come across more cohesively, as opposed to suggestions to “Include more analysis” or “Be more concise.” A dependent clause is an objectively defined thing that you can hang a hat on. And even if a student doesn’t know what it is or how to recognize or construct it, it’s something that is very learnable.

I was therefore very excited to come across the below Twitter thread from UNLV Legal Writing Professor and Write.law founder Joe Regalia today, explaining that he was in the midst of a linguistic comparison involving 10 court opinions written by Supreme Court Justice Elena Kagan (renowned for the quality of her writing) and 50 legal briefs written by various lawyers. In his tweets he shares some early observations from the analysis. Though alas, it’s just a teaser and it seems like we’ll have to wait for the full report or article to come out at some point to see the rest. If this were published as a book, I would be right there in the line outside Barnes & Nobles with all the other lawyer linguists waiting to get one of the first copies, a la Harry Potter mania.

Enjoy!

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Prof. Weger’s Grammar Workshop for Georgetown 2-Year LLM students

Post by Stephen Horowitz, Professor of Legal English, with special thanks to Prof. Julie Lake

Georgetown Law and its Two-Year LLM Program students are fortunate to have Applied Linguistics expert Prof. Heather Weger on the faculty to help multilingual law students with their writing skills.

Prof. Heather Weger

This week Prof. Weger, who holds a Ph.D. in Applied Linguistics, held a Grammar- Focused Workshop to introduce  students to specific strategies to improve their self-editing skills. Self-editing is a notoriously difficult skill to develop, and students benefit from tailored support and direct practice. In Prof. Weger’s words, “My goal is to help students engage with their language choices so that they can express their thoughts and personality with clarity and confidence.”

The workshop had two components: (1) A hands-on review activity to review strategies to correct clause-level errors and write more concisely and (2) a Grammar Review Workbook with several self-diagnostic and self-study activities The workbook, created by Prof. Weger, was designed with input from the Legal English team and tailored for students in the Two-Year LL.M. program.

 

Analyzing ChatGPT’s use of cohesive devices to help international LLM students improve cohesion in their writing

Post by Stephen Horowitz, Professor of Legal English, with special thanks to Prof. Julie Lake and Prof. Heather Weger for their time and linguistics expertise in analyzing and discussing the texts and editing this post, which is far more cohesive because of them.

Hot on the heels of my recent experiment to try and better understand ChatGPT’s view of improving language and grammar (See “Analyzing ChatGPT’s ability as a grammar fixer,” 2/23/23), I was grading my students’ timed midterm exams and noticed a paragraph in one students’ answer that had all the right pieces but decidedly lacked cohesion.

“….the biggest takeaway of all for this experiment…..ChatGPT can help instructors identify the kinds of cohesive devices that a student is not using and then support the student in learning to use and become more comfortable and familiar with those cohesive devices.”

So I mentioned this in a comment and gave some suggestions as to how to improve the cohesion in the paragraph. And then I had a thought:

Maybe ChatGPT can help!

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Teaching grammar in legal writing?

Post by Stephen Horowitz, Professor of Legal English

Prof. Rachel T. Goldberg of Cornell Law School recently published an intriguing article titled “Recovering Grammar” in The Journal of the Legal Writing Institute.

In the article, she proposes an idea that is not necessarily new to those teaching legal English or English for Academic Purposes. But it is likely new, and likely goes against the grain, for those in the US law school legal writing community.

The main point: There’s a whole other way to think about grammar than the way you probably learned to think about it. And it involves shifting to an understanding of grammar as one more rhetorical tool in a legal writer’s rhetorical toolbox, i.e., connecting grammar to communicative purpose, rather than viewing grammar as a series of pedantic, nitpicky rules to be followed for the sake of propriety.

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Article: Using ChatGPT in legal writing

Post by Stephen Horowitz, Professor of Legal English

Prof. Joe Regalia

Joe Regalia, Associate Professor of Law at the William S. Boyd School of Law at University of Nevada Las Vegas, recently shared on the Legal Writing Institute listserv that he’s been working on a chapter of a book that he will be publishing with Aspen Publishing later this year—tentatively called Leveling Up Your Legal Writing: Techniques and Technology to Create Amazing Documents.

The chapter–still in draft form–aims to be a practical guide for using ChatGPT in legal writing and can be viewed at this link for free in PDF format:

https://ssrn.com/abstract=4371460

Joe noted that even though he hasn’t even added sources yet to the draft chapter, he wanted to share in case any of the ideas are helpful to folks exploring using GPT in their classes.

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Analyzing ChatGPT’s ability as a grammar fixer


Post by Stephen Horowitz, Professor of Legal English

I recently tried a simple yet potentially helpful ChatGPT activity with my LLM students to (a) build individual grammar awareness, (b) build a better understanding of the benefits and limitations of using ChatGPT to fix one’s grammar, and (c) gain a better understanding of what happens grammatically when ChatGPT is asked to fix grammar.

The Process:

  1. As part of the Legal English II course (which teaches US case reading and analysis via a series of Supreme Court decisions about Miranda rights to students in Georgetown Law’s 2-Year LLM program), my students were required to write an essentially IRAC-style answer in response to a fact pattern under timed conditions.
  2. Afterwards, as an assignment, I asked my students to input their essay into ChatGPT with the instruction to “Please fix any language issues in this essay:
  3. Students then had to compare the two versions of their essay and write a short analysis or commentary on what they noticed, what ChatGPT did/didn’t do well, how they felt about it, etc. I told students to either put the two versions in a table so they could compare the language side by side, or they could do a use the redline/track changes function to show the differences.
  4. I next reviewed the students’ submissions myself. And I then invited two Georgetown Legal English colleagues with PhDs in applied linguistics–Prof. Julie Lake and Prof. Heather Weger–to review the student submissions and then have a group discussion about what we noticed.
  5. Upon additional consideration (and inspired by a suggestion from Jack Kenigsberg, a former Hunter MA TESOL classmate), I took one paragraph from one student’s essay and fed it into ChatGPT with the instruction: “Fix any grammar errors in the quoted text. For each change you make, explain why you made the change.” And after it provided its answer, I clicked “Regenerate response” to create a second response to see what (if anything) came out different a second time.

The Takeaways:

The main takeaways by my students, my colleagues and myself were:

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EAP Essentials: “Should we teach grammar? Yes but no but!”

Stephen Horowitz is the Director of Online Legal English Programs at Georgetown Law.

The below blog post from EAP Essentials–“Should we teach grammar? Yes but no but!” by Olwyn Alexander is a thoughtful and healthy reaction to the shift away from “teaching grammar,” which itself has been a reaction to the perceived flaws in the traditional ways of teaching grammar. However, there’s been a shift back towards the teaching of grammar–conditioned on the premise that it’s “done right”–as more thought and research has gone into better ways to help students acquire grammar. 

What the “right” or “best” way to teach grammar is is still up for debate. But overall there is a recognition that grammar is not sufficiently acquired just by exposure (e.g., Krashen and the “natural method”), particularly when it comes to academic English (or legal English for that matter.) Intentional effort and guidance is needed to help learners acquire the grammar they need to communicate effectively at the academic English level.

But from that starting point of recognition, there is still a wide divergence on understanding and belief as to what “done right” ultimately means. I definitely don’t have all the answers. But I do have a few beliefs on the topic:

1. Form should follow function: The grammar that is studied should hue as closely to the content being studied and the communicative needs associated with that content. In this regard, a field like legal English is ideal from a teaching perspective because we have ready-made content and communicative purposes. It’s just a matter of scaffolding the content and then mining it for the grammar needed.

2. Grammar Fluency: It’s not enough just to learn and practice an aspect of grammar. There need to be repeated, natural exposures. And ideally in the regular course of studying the content. It’s hard to contrive natural ways to encounter grammar structures. But it’s a lot easier if you start with the content, work backwards to identify the grammar needs associated with it, and then develop grammar focus and curriculum based on those materials. And that allows for repeated exposures. Additional thought on repeated exposures: One of the advantages kids have is that they like repetition. As evidence, I cite the number of times my kids have watched and sung the songs from “Frozen” and other Disney movies as well as the number of times children like to read the same book over and over. Adults, on the other hand, are prone to getting bored. And that’s significant because motivation is a significant component of language learning. So creativity is key in figuring out how to generate repeated exposures for adult learners.

3. Ear Training: I think this aspect of grammar learning is vastly underrepresented in discussions of how to teach grammar. Especially since so much of grammar comes down to having a sense of what “sounds right.”

As native speakers of English, not only do we spend very little time thinking about the rules of the grammar we use, for the most part we never thought about them when we learned the appropriate grammar. This is particularly true of articles, prepositions, and -s endings (e.g., 3rd person and plurals.)

These are grammar points that so many of our LLM students struggle with. And these also happen to be parts of speech that are harder to hear, especially if your ear is not used to hearing them. In other words, if you can train your ear to hear those sounds, then you’ll hear them more and you’ll develop a sense of what sounds right and start using them more accurately in your own speech and writing. 

There is of course much more to learning and teaching grammar than my above points. But Alexander’s blog post got me thinking about what drives much of my focus and decision-making in teaching grammar to my students, so I thought I would try to add to the conversation. Feel free to share your own thoughts. 

Here are the first few paragraphs of Alexander’s blog post from EAP Essentials along with a “Continue reading” link at the end.


Should we teach grammar? Yes but no but!

Students need grammar but they don’t need grammar classes.

Olwyn Alexander

I was asked recently by a head of pathways programmes at an international college whether we should teach grammar in EAP. This manager was under pressure from some teachers to introduce a more structured approach to teaching and testing grammar. Some years previously, prompted by feedback from an external moderator, they had developed a bespoke grammar workbook, which was ‘aligned with the topics taught in the course, [covering] the language features which are considered to be salient in scholarly English [and targeting] areas where students show weaknesses when it comes to academic writing’. The workbook covers language patterns, such as noun phrases, active and passive voice, conditionals and modal verbs. However, teachers on the programmes have a number of issues with the resource:

  1. There is little time to teach grammar in the course
  2. It feels artificial to teach grammar this way (grammar rules and explanations, followed by practice)
  3. It does not address all issues that students have when it comes to grammar
  4. It’s dry and students do not engage with it

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