Dictionaries v Expert Testimony

Chris Hutton, Professor of English at the University of Hong Kong, submits a number of benefits to the use of a dictionary that would be invariant (presumably) across almost all cases in his book Language, Meaning, and the Law:

“One tactic that courts sometimes employ when having difficulty with the meaning of an ordinary word is to consult a dictionary. For courts, dictionaries have several advantages over linguists as expert witnesses on the ordinary meaning of words. Consulting a dictionary is a familiar practice within the linguistic experience of lawyers, but asking a linguist is not. Dictionaries are created by professional lexicographers, and so can serve a court as a kind of surrogate expert witness. There is a wide choice of professionally edited dictionaries on the market, with differing definitional styles and contrasting organization of entries. The dictionary is also obviously cheaper and more readily available, and its point of view can be ignored if unhelpful, or a second opinion sought” (Hutton 86).

I think it’s impossible to generalize the utility of dictionaries across all types of court cases, however. Many of the cases referenced and discussed by Hutton focus on questions of words included within statues, rather than instances of needing to use a dictionary or expert opinion to determine the status or meaning of a trademark word or word perception and reception of a specific word by a speech community in question (which may not be able to be articulated by dictionary definition).

Dictionaries may provide a good starting place for teasing out the literal meaning of words, but it is unlikely that the average consumer, in the example of trademarks and product consumptions, consults a dictionary in the marketplace before interacting with a product. As Hutton cites Lord Blackburn in River Wear Commissioners v Atkinson (1877) as asserting, “But from the imperfection of language it is impossible to know what the intention [of a word] is without inquiring further, and seeing what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances which the person using them had in view, for the meaning of words varies according to the circumstances with respect to which they were used” (Hutton 87) (emphasis added by me). Determining a reliable, legal precedent for the meaning of the word ‘insult’ in a statute such as that which occurred in the interpretation of S 5 of the Public Order Act of 1936 in the United Kingdom (discussed in Hutton 89) should be treated quite differently from attempting to determine, through common usage and definitions, whether or not two trademarks are sufficiently similar or suggestive to cause confusion regarding a product.

Some dictionaries, such as Black’s from the late nineteenth century, for example, which are nevertheless well respected and relied on by the legal community might lack utility in their inability to account for common understandings of terms. When discussing Olmstead v United States, the definition of the word ‘search’ is sought as it pertains to criminal cases. Hutton submits that “in lexicographic terms, a search is generally understood first as a physical search” (Hutton 93) yet it might be possible to submit that conducting a search, for people of my own generation and upbringing, rarely involves anything more physical than typing a phrase into a Google search bar on the internet. Testimony or data outside of a dictionary may be useful in ways impossible for a dictionary in addressing not how the word search is actually defined, but the evolving nature of how a particular word is understood, most importantly by the parties involved in any particular legal exchange. In the example I have constructed above, there may not even be the question of whether or not there exists a “classic jurisprudential clash of literal versus figurative meaning” (Hutton 95) if it could be argued that to search on Google is, in fact, perceived as completely literal for people almost as much as rummaging through their homes might be.

I believe that judges, in this instance, though justified in their assertions that dictionaries are impartial and convenient, are incorrect in ignoring some form of linguistic authority or expert testimony that might be better equipped to discuss the distinctions between how words can be used and how words are ordinarily used and understood by populations of speakers.

If we are to assume, as Hutton does, that “dictionaries are fundamentally indeterminate, in that they frequently offer more than one meaning for a word, and cannot capture the full contextual meaning of a word in a statute, since meaning in its fullest sense does not exist outside context” (Hutton 99), then a case can be made for the superiority of linguistic analysis of meaning over a mere traditional lexicographic approach. It should also not be equivocated, as is proposed, that an expert having knowledge of the specifics of a case in some way constitutes a bias which detracts from their credibility or utility. Hutton notes that, ““most importantly the organization of a dictionary entry is also untainted by direct exposure to the linguistic facts of the case in their social setting. The dictionary, more than justice itself, is blind to the moral rights and wrongs of the case, whereas an expert witness testifying as to the meanings of words at issue does so with notice or knowledge of the wider legal conflict” (Hutton 87). Yet, unless it an somehow be proven that this situation (presumably unavoidable) leads to biased or otherwise externally motivated assertions or conclusions in the courtroom, what is the harm in a linguist having knowledge of the specifics of a case? At the end of the day, it might be argued that words mean nothing more than the meaning we give them, any member of a speech community, especially an expert trained in linguistics, should be viewed as credible insofar as they submit or affirm general attitudes towards a word or its meaning.

In the example of John Angus Smith v United States (1993), Justice Scalia argues for the necessity to distinguish between possible uses of words and ordinary usages of words. Unfortunately, there may never be a way to say whether or not the majority or the dissent in the case is more correct in their interpretation of the word ‘use.’ What is certain, however, is that it seems odd to consult a dictionary (especially one like the Oxford English Dictionary which is compiled on the basis of usage) and then somehow feel strongly about not using a linguist (who themselves is a member of a speech community). To consult a dictionary based on usage but feel opposed to consulting a linguist prepared to give testimony in support a words usage seems contradictory. The question of the word ‘use’ in John Angus Smith v United States is one of “the idea of literal meaning frequently [emerging] as important in a case where there is a perceived divide between two possible meanings available to, or forced upon, the attention of the reader/interpreter. This may often be a question of the extension of a term from a concrete domain to a more abstract one” (Hutton 91).

Ultimately,

“From the judge’s point of view, the dictionary is literally a handier guide to meaning than the linguist. Unlike the linguist as expert witness, the dictionary has no notice of the facts of the case. In this sense the dictionary entry is like the text of the statute: it is ‘closed’ prior to the case and can be presented as neutral with respect to it. The dictionary is useful to the judge not because it can provide sociolinguistically accurate guidelines to follow, but because it offers an authority seen as objective and general” (Hutton 101).

This conclusion better favors issues such as the question of what the word ‘use’ means in a statue pertaining to firearms over the necessity to notice the facts of a case where it involves how consumers interact with a product in the marketplace if that product were a word which was a trademark. Dictionaries may be seen as general and objective, but even dictionaries are made by people who have opinions about the use and place of language. Even if it is impossible to change how judges feel about dictionaries generally, it is important for judges to consider the utility of judges versus expert testimony as it pertains to different types of cases involving words in court.

“In this sense – for the judge at least – the linguists manifold objections to the dictionary are beside the point, as the flaws in the dictionary from the linguist’s point of view are precisely what make it a useful tool for the judge” (Hutton 101). Given this statement, what we simply need from both parties is the ability to understand the proper place and value of each depending on the needs and contexts of a case. I do not believe that linguists should react to judges’ neglect of their objections to dictionaries by altering their approaches to verbal meaning, but there must be better education and understanding from both parties about the place of one practice over the other in some cases. In a perfect world, it would be possible to marry the two in all instances and come out with a ‘correct’ answer, the problem with language, however, is that rarely is one answer correct in an absolute sense as it relates to the meaning of words.