ENG40384

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ENG39210.1177/0022022111403849ButtersJournal of English Linguistics

In the Profession
Journal of English Linguistics

Forensic Linguistics 39(2) 196­–202

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DOI: 10.1177/0022022111403849
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Ronald R. Butters1

It is a truism among legal scholars that “the law is language.” After all, lawyers, courts,
and law-enforcement agencies directly engage speech and writing in nearly every-
thing they do. Even in preliterate societies, such as medieval Iceland, legal codes were
memorized and then recited by specially designated legal scholars at times that were
set aside for the settling of disputes. Thus, the first acts of legal syntactic and seman-
tic interpretation were birthed in the discussion and application of the language of the
law to specific adjudicational instances. With the advent of writing came written civil,
criminal, and religious codes as well as legal commentaries, and thus the field of
language and law was born.
In the past 40 years, the law has become of increasing interest to scholars in various
nonlegal fields. Students of literary theory and rhetoric (e.g., Fish 1989, 1994, who
sometimes drew on linguistic theory) began to write extensively about issues in legal
interpretation and even hold appointments in law schools. Anthropologists with an
interest in language and culture—and law professors with substantial training in
linguistics—began to examine the intersection of linguistics and the law and the reflexes
of language in the courts, looking at the specific genres and registers of legal language
as proper objects of linguistic study in their own right.1 At the same time, linguists
became interested in a wide variety of law-related topics, prompted greatly by the
requests of legal professionals to draw on the scientific expertise of linguists (1) in
helping to prepare attorneys’ cases (both civil and criminal) and present them in court
and (2) in assisting law-enforcement agencies to evaluate evidence in criminal inves-
tigations and prosecutions.
This specialized field of applied linguistics is known as forensic linguistics. It is the
subject of a substantial body of scholarship, introductions to which can be found in
various textbooks, anthologies, and handbooks.2 Shuy (2006), a treatise on forensic
linguistic practice, is an excellent source of practical advice for linguists interested in
offering legal consulting services. Several scholarly organizations are involved in fur-
thering research on language and law, including the American Dialect Society, the
American Name Society, the Dictionary Society of North America, the International
Association of Forensic Linguists, the International Language and Law Association,
and the Law and Society Association.

1
Duke University, Durham, NC, USA

Corresponding Author:
Ronald R. Butters, Duke University, English Department, 314 Allen Building, Durham, NC 27708
Email: ronbutters@aol.com

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Butters 197

My own interest in language and law began in 1984, when a Raleigh, North Carolina,
attorney asked me for advice concerning some surreptitiously recorded conversations
between the attorney’s client (then the lieutenant governor of North Carolina, who was
being tried in state court on bribery charges) and an undercover agent of the FBI. My
advice on the viability of the two sides’ theories of the meaning of key portions of the
conversations depended directly on pragmatics and discourse analysis (e.g., When
the accused said, “OK,” was he agreeing or merely indicating that he was listening?).
The defense’s case was strong enough that they did not need me to testify in court,
but they indicated that my linguistic analysis aided them in presenting their case (and
the lieutenant governor was acquitted). I soon learned that Roger Shuy had indepen-
dently become involved in similar undertakings in a number of high-profile cases (see,
e.g., Shuy 1993, 1998).
I did not set out to be a forensic linguistic consultant. A local newspaper story fea-
tured my work in sociolinguistic data collection in North Carolina. The attorney in the
lieutenant governor’s case was inspired by the story to ask me to consult. Other cases
soon followed with his recommendation and that of Shuy and others, and I began
exploring the specialized literature, drawn especially to several articles about trade-
mark cases (Bailey 1984; McDavid 1977; Robinson 1982). When I was offered my
first trademark case, I jumped at the chance to make trademark litigation and scholar-
ship a particular specialty (see Butters 2007a, 2008a, 2008b; Shuy 2002).
Since the very early days of my consulting work, I have never advertised my
services (though some consulting linguists do so). My website highlights my forensic
linguistic work, and attorneys sometimes find me simply through search-engine searches.
Occasionally, lawyers will cold call English departments, seeking an expert; the
staff was alerted to refer them to me. But most of my work is repeat business, or by
recommendation.
By the end of 1989 I had consulted on some twenty cases (eight during 1989 alone)
throughout the United States. In the majority of cases I did not actually testify in court
but merely offered linguistic advice to the attorneys; sometimes, my advice consisted
of formal reports or declarations that were filed with the court and read by the judges.
In noncriminal cases, I also testified under oath in depositions, in which opposing coun-
sel are allowed to cross-examine experts about their reports and proffered testimony.
I have continued my forensic linguistic work up to the present day and have con-
sulted in one form or another on perhaps 250 cases, perhaps 15 percent of which ended
up in actual courtroom testimony. In each of these cases, the application of some
branch of linguistics to the answering of some linguistic question is central to the
enterprise. I have participated in most of the kinds of cases that forensic linguists work
on (exceptions: the adequacy of courtroom translation, determination of ethnic origin
in immigration contestations, inciting to riot, racial discrimination in the market-
place, forensic phonetics, clarity of juror instructions), including the adequacy of
product warning labels and the comprehensibility of printed instructions, allegations
of defamation, defense against ambiguity and evidence of coercion and/or actual
police authorship in confessions and witness statements, false advertising, obscenity

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198 Journal of English Linguistics 39(2)

and pornography, perjury. The following descriptions of some of the cases in which
I have testified provide a more detailed indication of what is involved in forensic lin-
guistic work.

In state court in Raleigh, North Carolina, before a judge in a preliminary hearing

concerning the police statement of an accused murderer: Linguistic analysis
of the statement showed marked deviations from normal speech because the
accused ignored Gricean maxims of conversation (quantity, quality, manner,
and relevance). A psychiatrist also testified that the accused was insane.
In a state court bench trial in Lake City, Florida, concerning insurance company
liability for payment for wrongful death in which the homeowner was mur-
dered by her estranged husband: Linguistic analysis considered the syntactic
and lexical structure of passages in the insurance policy, in particular, whether
the policy’s reference to the “named insured” could be construed to include the
estranged husband.
In a state criminal court in Staunton, Virginia, in a judge’s pretrial bail hearing
concerning a man whom the court had previously ordered not to contact his
alleged victim, yet she had continued to receive telephone calls, which she
recorded, from someone whom she claimed was the young man: Linguis-
tic analysis indicted that the telephone caller had features of South Midland
dialect, whereas the accused’s natural dialect appeared to be North Midland.
In a Florida state court jury trial involving discourse analysis of the transcript of
a brief telephone conversation between the accused and a sheriff, who died
shortly after the conversation: Linguistic analysis indicated that the prosecu-
tion’s interpretation of the transcript—that the words “I shot Lenny, the gun
went off and killed Lenny” were a de facto confession to first-degree murder—
was unnatural and artificial.
In a Virginia trial in which a child, sent home from school for wearing a shirt
that had Drugs Sucks! printed on it, held that her free speech rights were
violated because she had worn the shirt as a public service: Linguistic
analysis concerned the meaning and alleged taboo nature of the word suck
(Butters 2001).
In federal civil pretrial proceedings in Seattle involving Native American Indian
treaty rights: Lexical and syntactic analysis of the language of the treaty
noted especially the change in meaning of the key word shellfish between
1840 and 1993.
In Florida state criminal court pretrial proceedings in which the accused alleg-
edly mutilated an embalmed human corpse by removing the penis: Syntactic
and lexical analysis of the controlling statutes revealed apparent inadequa-
cies of the law forbidding “desecration of a grave” (a new law was written in
apparent response to this case).
In Washington, D.C., in a police department internal disciplinary proceeding
in which the prosecution alleged that the accused had cheated on a written

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Butters 199

examination: Linguistic analysis argued that another linguist’s methodology

for stylistic analysis was invalid as an indicator of authorship.
In a Virginia federal trial concerning allegations that the trademark CarMax
infringed on Speedy Car-X: Linguistic analysis dealt with the phonological,
semantic, and pragmatic differences bearing on the likelihood of confusion
of the trademarks.
Before the U.S. Trademark Trial Appeal Board concerning the putatively dis-
paraging meaning of the word Redskin as used as the team name for the
Washington, D.C., professional football team: Linguistic analysis concerned
the historical and current meaning of Redskin.
In a Chicago federal court jury trial concerning whether the trademark Beanie
Baby is generic, descriptive, or imaginative: My linguistic analysis found the
trademark to be imaginative (i.e., in some sense figuratively related to the
product itself).

Forensic linguistic consulting thus offers a means of applying linguistic knowledge

to situations that can make a considerable difference in the real world while at
the same time offering a rich opportunity for linguistic scholarship. Taking part in the
specialized intellectual life of the forensic linguistic community often greatly facili-
tates consulting work. One danger, that academics could become overly involved in a
consulting “career,” is lessened considerably by two factors: universities generally
place strong limitations on the outside enterprises of faculty members, and even the
perception of careerism can make any consultant ineffective if it leads to juries and
legal professionals viewing the linguist as a mere “hired gun.” Linguists can take other
steps as well.
First, one’s primary ethical rule must be competence. Strong academic credentials
make it much easier for attorneys to persuade a court to allow an expert to testify at all.
Yet being a published linguist, even a tenured person with a doctorate, does not neces-
sarily mean that one has the specialized linguistic knowledge that is needed in any
particular case. Proffering testimony in areas of linguistics outside one’s specialty is
dangerous. Better not to take on a case at all than to take on a case that one is unable to
treat with full professional expertise.
The second ethical rule is to take seriously the language of the sworn testimony
statement as used in the United States: tell the truth, the whole truth, and nothing but
the truth. The consultant must not be an advocate for either side in a legal dispute;
one’s role is to assist the court—attorneys, judge, and/or jury—to understand the
evidence scientifically. Proper understanding of criminal case evidence can mean
the difference between freedom and incarceration for a defendant; parties in a civil
dispute may have millions or even billions of dollars at stake. Legally, only the judge
and jury may decide where justice lies in any case. The linguist must focus strictly
on attempting to attain the linguistic truth. Better not to accept a case at all than to
take on one where one has to bend the science to make viable the attorney’s theory
of the case.

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200 Journal of English Linguistics 39(2)

A final ethical rule is to strive for equanimity. Cross-examination can be brutal,

and even reading an opposing linguist’s rebuttal report can fill one with frustration.
Academics—accustomed to being the final arbiters of discussion in the classroom—
tend not to take well to contradiction. It is dangerous to become so invested with the
correctness of our own theories that we cannot see how appealing the plausible ideas
of the opposing linguist—even if meretricious—might be to a jury.

Notes
1. See Hirsch (1998), O’Barr (1982), O’Barr and Conley (1990, 1998), Solan (1993), Solan
and Tiersma (2005), and Tiersma (1993, 1999).
2. A selection of these texts includes Butters (2007b), Cotterill (2002), Coulthard and Johnson
(2007, 2010), Gibbons (2003), Gibbons and Turell (2008), Kniffka (2007), Labov (1988),
Levi and Walker (1990), Olsson (2004), Rieber and Stewart (1990), Shuy (1993), and Turell,
Spassova, and Cicres (2007); also see Ainsworth (2006) and Howald (2006) for article-length
surveys about the legal reception of forensic linguistics.

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