9

## Linguistic monitoring of communication between experts and non-experts in the legal fi  eld

At the annual conference of the German Association of Applied Linguistics  (GAL)  in  Koblenz  in  2005  a  workshop  was  organised  on linguistic monitoring of communication in the fi  eld of law. 1  The papers of the thematic section of this volume of Hermes originate from this workshop. The  idea  underlying  the  workshop  was  to  support  recent development in German applied linguistics to overcome the traditional focus of studies on the description of texts and to widen the scope in the direction of more global approaches, such as, for instance, the study of processes of understanding in the framework of legal communication.

Over the years, a substantial number of papers have been published on the topic of the intelligibility of legal texts 2  and there has been much fo  cus on the topic from the general public and from politicians. However, despite the consistent linguistic contributions and the public interest in the topic the impact on writing habits of legal professionals at least in Germany has been fairly limited. The linguistic experts and the general public have not yet managed to start an effi  cient communication pro  cess  with  the  legal  community.  This  may  be  due  to  the  fact  that much  criticism  has  focused  upon  merely  stylistic  features  and  has fail  ed  to  take  into  consideration  the  full  complexity  of  the  problem. In order to break the barrier between the different communities, a dif- ferent and more globally oriented linguistic approach is needed which fo  cuses more on the structures of the communicative situation and their convergence with linguistic aspects of the legal texts. Applied lin  guistics has the potential to develop relevant methods for fulfi  lling this task in the form of a linguistic monitoring of the communication be  tween experts and non-experts in the fi  eld of law. The contributions to this thematic section may be seen as a fi  rst attempt to collect and screen potentially relevant methods.

1 For  a  report  on  the  programme  of  the  workshop  see  Eckardt/Engberg/Warnke 2006.

2 A good overview of recent positions in the fi  eld is presented in Schenderra (2004)

* Jan Engberg ISEK Aarhus School of Business Fuglesangs Allé 4 DK-8210  Aarhus V je@asb.dk

* Birgit Eckardt Friedrich-Schiller-Universität Jena Fürstengraben 1 D-07737  Jena Birgit.eckardt@zuv.uni-jena.de

In general, monitoring is  the structured long-term observation of a system. An example of monitoring from the fi  eld of environmental studies is the investigation of the effects of contaminants on selected species and habitats known as biomonitoring . What is monitored is a function  ing system, and the focus of the monitoring is on assessing the state of the system and the impact of specifi  c factors on the functioning of the system. But monitoring not only consists in observing the system and its functioning. Evaluation of the results of the observation on the basis of  scientifi  cally  generated  value  systems  is  an  important  part  of  the method  ology, too. Consequently, a monitoring methodology is suitable for assessing problems in the functioning of a system and for making sug  gestions for optimizing the system.

In  the  case  of  applied  linguistics  and  the  fi  eld  of  law,  the  goal  of the monitoring process would be to optimize the system of le  gal commu  ni  cation in order to achieve a professionally managed media  tion of knowledge relevant for legal purposes. Applied linguistics has develop  ed specifi  c theories for the evaluation of processes of under  stand  ing and also has at its disposal methodologies for describing and assess  ing communicative  processes.  Consequently,  by  adopting  the  principles of system monitoring applied linguistics should be able to enter into a much more fruitful cooperation with all participants in legal com  mu  nica  tion and thus contribute to a better communication not only in law, but also between the different interests of the communicative system.

The fi  rst  step  in  the  development  of  a  methodology  for  linguistic moni  tor  ing must be to assess which types of problems exist and which linguistic methods have been used in practice to describe and po  ten  tially solve these problems. The thematic section contains two such contribu  tions. The paper by Nickl treats patent documents, where  as the paper by Neumann et al. is concerned with the mediation of argumentation and results of decisions by the German Federal Consti  tutional Court. Nickl  presents  the  genre  with  its  potential  com  mu  ni  ca  tion  problems and shows how linguistic experts in his private service company ac  tual  ly  work  with  optimizing the texts and solving the problems found. Con  sequent  ly, he shows what a monitoring process, including the optimiz  ing of the texts, may look like in the real world. On the other hand, Neumann et  al.  (a  group  consisting  of  lawyers  as  well  as  lin  guists) pre  sent  a  study  more  focused  upon  a  specifi  c  linguistic  feature  and its  impact on the intelligibility of legal texts. They describe the syntac  tic complexity of German court decisions, court press releases and newspaper articles on the decisions. On the basis of their results, they construct versions of texts based on original German court decisions with controlled complexity features and test the intelligibility of these text  parts  through  psycholinguistic  tests.  So  their  contribution  to  the devel  op  ment of a linguistic monitoring lies mainly in the fi  eld of combin  ing different methods (syntactic analysis, psycholinguistic tests) and assessing the impact of one factor (syntactic complexity) on the degree of success of the mediation in this fi  eld.

In the workshop, but not documented in the thematic section, other contributions to the development of a linguistic monitoring were also presented. Ekkehard Felder, Heidelberg, focused on law as a fi  eld of knowledge  and  showed  how  the  primary  problem  in  under  stand  ing sta  tutory texts lies in the fact that the knowledge systems ('Wissensrahmen')  of  experts  and  non-experts  are  far  apart  from  each  other. Con  sequently, optimizing the communication must to a certain extent consist in transferring knowledge about differences in the knowledge systems. 3  Jan Engberg, Aarhus, took his point of departure in the fact that legal meaning is inherently dynamic and investigated the impact of this fact on the task of assessing the intelligibility of legal texts. As a methodology for observing differences and similarities between different  conceptualisations  of  concepts  he  suggested  that  focus  on  seman  tic  networks  should  be  expanded. 4  And  fi  nally,  Kerstin  Grönert, Bielefeld, and Kristin Gogolok, Halle, each presented empirical studies of communication in public administration. In both cases, the different knowl  edge basis of the employed experts in the administration and the citi  zens was established as a major problematic issue, and suggestions for overcoming the gap primarily through a more dialogical formulation pro  cess were given. 5

3 See Felder (2005) for information on the approach.

4 This contribution is in the process of being published.

All of the contributions mentioned so far help establish central problems  of  the  communicative  system  to  be  monitored,  and  they  also offer tools for observing and evaluating the problem. In other words, they contribute to the development of the process and methodology of monitoring which was at the root of the workshop. However, even the best developed descriptions and suggestions for optimizing are use  less if they are not accepted by the participants of the relevant kind of commu  nication. That, in a nutshell, is the lesson to be learned from former attempts to optimize legal communication. Consequently, two legal experts in the workshop were asked to asses the linguistic contributions from their point of view, in order to function as correctors in the process of developing the linguistic monitoring of communication in the fi  eld of law. In the thematic section, Viola Heutger, Amsterdam, and Kent D. Lerch, Berlin give a critical evaluation of ideas and suggestions in the workshop and present their view as to positive points and necessary changes in the approach in order for it to be an effective tool and a potential common ground for lawyer-linguist cooperation.

The workshop and this thematic section documenting some of the central contributions are but a fi  rst step in the development of a lin  guistic monitoring of the complex system of legal communication. However, this fi  rst  step  has  shown  that  a  number  of  relevant  and  empir  ically tested approaches exist and that they may function as input for the development of a more globally oriented methodology of monitoring. And the cooperation with legal experts has also shown a wish to establish fi  elds of contact where linguistic monitoring may help overcome recognised problems. Therefore, we defi  nitely see a future for the appli  cation of such a methodology in the fi  eld of law.

5 See Grönert (2004) for information on the approach. The contribution by Gogolok is in the process of being published.

## References

- Felder, Ekkehard 2005: Alltagsweltliche und juristische Wirklichkeitskonsti  tu  tion im Modell  der  ,Juristischen  Textarbeit'  -  Ein  sprachhandlungs  theore  ti  scher  Beitrag zur  Kommunikation  im  Recht.  In:  Lerch, Kent  (Hg.) Die  Sprache  des  Rechts. Strukturen, Formen und Me  dien der Kommunikation im Recht . Band 3. Berlin/New York: de Gruyter, 133-168.
- Grönert, Kerstin 2004: Verständigung und Akzeptanz in der Kommunikation zwischen Bürger und Verwaltung . Bielefeld: Universität Bielefeld.
- Schenderra, Christian F.G. 2004: Die Verständlichkeit von Rechtstexten. Eine kritische Darstellung  der  Forschungslage.  In  Lerch, Kent  (Hg.): Die  Sprache  des  Rechts. Struk  turen, Formen und Medien der Kommunikation im Recht . Band 1. Berlin/New York: de Gruyter, 133-168.
- Eckardt, Birgit/ Engberg, Jan/ Warnke, Ingo 2006: ,Linguistisches Monitoring der juri  stischen Experten-Laien-Kommunikation' - Themenbereich der 36. Jahrestagung der Gesellschaft für Angewandte Linguistik (GAL) in Koblenz. In Fachsprache 28 1/2.

14