April 17, 2007

What a lawyer means by "fact", "conclusion" and "opinion"

Most of us are pretty good at "audience design": fitting how we express ourselves to what others are ready to hear. We notice when someone else is especially bad at this; but everyone's image of other people's minds has some blind spots. Cross-cultural communication often runs aground on such misperceptions, or at least we're told this by those who aim to teach us how to interpret the table manners and negotiating ploys of other cultures. And one of the deeper cultural divisions within our own society appears to be the one that separates lawyers from everybody else.

A few days ago, when Senator Arlen Specter was asked about Attorney General Alberto Gonzales' statement on the U.S. Attorney firings, he dismissed it as "conclusory". This usage puzzled me; it's missing from the standard (non-legal) dictionaries; and it was also news to Steve of the Language Hat blog, who must surely be in the top thousandth of a percentile or so in knowledge of English vocabulary. So why would Senator Specter, a savvy and experienced politician, use a word that probably baffled the great majority of his consitutents? Well, he's a lawyer by background, and conclusory has apparently become part of a cognitive system that is central to the lawyer culture, at least in America -- so central that it's apparently hard for members of that culture to remember that outsiders don't care as much about the distinctions involved, don't use some of the words in the same way, and don't know some of the words at all.

The comments from readers appended to my earlier post give some insight into this cultural complex. A long email that arrived this morning offers additional reflections.

I've been an [American] lawyer for 31 years now, and I was startled by your article--startled because "conclusory" in the legal sense you give is so perfectly unremarkable to me, and always has been. In fact, I think of it, in at least one of its uses, as an unremarkable synonym for "question-begging," in the older sense. I therefore assumed that lawyers, at least, have been using it since time immemorial, or as lawyers used to say " since the memory of man runneth not to the contrary." It never occurred to me that its status as a word might be open to dispute, or that it has any other meaning, or that it is an Americanism. For lawyers, in fact, it is absolutely essential, because we constantly contrast "facts" and "conclusions" in a way unfamiliar to laymen. For example, the statement by a witness that a person was "drunk" is commonly said to be inadmissible because it is not a statement of fact based on personal observation, but a mere conclusion--i.e., it is "conclusory." This sounds bizarre to the layman, but the point is that the witness must testify to the specific observations--staggering, glassy eyes, slurred speech--that led him to the conclusion that the person observed was intoxicated. And that conclusion is ultimately for the jury, not the witness, to draw.

To give an everyday example from my practice as an employment lawyer: the Massachusetts Commission Against Discrimination must decide whether there is "probable cause" to believe that an employee has been discriminated against. If so, there is ultimately a hearing--a trial. "Probable cause" depends on the existence of "a triable issue of fact." If a female employee says that on certain occasions she was sexually harassed by particular words and actions, and her manager denies it, there is a triable issue of fact, even if there is no external evidence to corroborate the employee's story. If she says, however, that she was ostensibly terminated for lateness, but her termination was actually motivated by a "discriminatory animus"--an inward prejudice--she has not raised a "triable issue of fact," as the allegation that someone has a certain attitude or inward state is a "mere conclusion" in the absence of specific evidence--like the telling of racist jokes--to support it. Obviously one's mental state is, in some sense, a fact like any other, but since it must be inferred from outward circumstances lawyers call assertions about it "merely conclusory" unless the circumstances are also alleged.

Lawyers then make matters worse by using the word "fact" half the time in a purely procedural sense. A "fact" is something to be determined by the jury from the evidence; the legal consequences are to be determined by the judge. Thus lawyers will deny that something is a question of fact, to the bafflement of laymen, when they are actually making a purely procedural statement about where in the system decision-making authority resides.

Then again, just as they contrast "facts" and "conclusions," lawyers also contrast "facts" and "opinions," where "opinions" simply means a certain kind of factual assertion that may be made only by a witness "qualified"--i.e., accepted by the judge--as an "expert." Thus to the lawyer, the statement "he died of a myocardial infarction" is not a statement of fact, but an "opinion," because it may be made only by a qualified medical expert who has clearly stated the factual grounds that he has assumed as a basis for his opinion. And "assumed" is the right word, because the statement that "the victim was a 76-year-old obese male with obviously occluded coronary arteries" is not a "fact" until the jury concludes that it is so. In other words, it is not yet a "fact" at the moment that the witness relies upon it for his conclusion!

Sorry to go on so long, but I love this stuff. I think lawyers constantly get in trouble because they have never clearly articulated to themselves the different senses in which they use the words "fact," "conclusion" and "opinion."

[Update -- Alexandre Enkerli at Linguistic Anthropology suggests a comparison to the lingo of classical deconstruction, as rationally reconstructed by Chip Morningstar in " How to Deconstruct Almost Anything. My question is, would the lawyers or the literary theorists be more outraged by the comparison? ]

Posted by Mark Liberman at April 17, 2007 07:04 AM