Sid DeLong on Forensic Interpretation
Forensic Interpretation
Sidney DeLong
Two Kinds of Interpretation. Suppose you have agreed to meet a close friend in a crowded shopping mall so that you can eat dinner at a popular restaurant before going to a movie. She texted you that she would meet you at 6:00 p.m. near “the big clock.”
When you arrived at the mall at 5:50, however, you discovered that the mall has two “big clocks.” One is a gigantic clockface prominently displayed over the main entrance to the mall. But your examination of the index on the posted mall map shows that there is also a furniture store called “The Big Clock” located on an upper floor of the mall, next door to the restaurant. Which one did she mean? Unfortunately, it is impossible for you to monitor both locations and the battery in your cell phone has just died.
You are required to interpret your friend’s message by guessing what she had in mind when she said “the big clock.” Why would she use that as a meeting point? Is one of the two candidates a more reasonable meeting point? Did she plan to meet you in front of the mall so that you could walk to the restaurant together or did she plan to meet you at the store nearest to the restaurant? You recall your recent conversations trying to remember whether either of you had ever mentioned the clock sign. Whether you had ever shopped at the store called the Big Clock. Then you ask yourself “meta-questions”: Is she aware that there are two big clocks? If so, why she would assume that you knew which clock she meant? Does she frequently have misunderstandings like this? Do you?
Your goal in this interpretation is to figure out exactly what your friend meant when she said “under the big clock.” If you guess right, you will meet her; if not you won’t. Your reasons for the guess won’t matter either way. For purposes of this posting, let’s call what you are doing “discovery interpretation” because you are trying to discover a fact: what did she mean by the words she used? In a sense you are trying to “decode” her statement. You are asking yourself a question to which there is a correct and incorrect answer and it makes a difference whether you get it right.
Now assume that, as so often seems to be the case, you guess wrong and a delay ensues during which you each walk back and forth between the big clocks looking for each other. Later, at the restaurant, you discuss the misunderstanding. You may apologize for misunderstanding or she may confess that she should have been clearer or you may engage in a (mild) argument. Typically, you give the reasons why your interpretation was the most reasonable, while she gives you reasons why it wasn’t.
At this point in the evening, you have ceased to engage in discovery interpretation and are engaged in what I will call “adversarial” interpretation. You are no longer trying to discover her actual meaning in saying “Meet me at the big clock.” Nor are you merely disclosing what you actually understood her to mean by that phrase. Instead you are both talking about what you should have understood or what she should have said.
“Should” implies that adversarial interpretation is not factual but normative. Neither of you can win the argument just by asserting which of the two meanings you actually had in mind. Instead, each of you is arguing about what someone should have understood it to mean, about the justification for your interpretation versus the justification for hers. Adversarial interpretation always appeals to an impersonal standard of reasonableness. It is competitive in that contending interpretations involving opposing justificatory reasons. The “winner” of the competition is the one who makes the most compelling case for the interpretation she advances.
But this is not a debating contest. The question is always what you should have understood her to mean in thissituation, not what hypothetical third parties should have understood. It is not only legitimate but essential in these discussions to refer to your prior conversations and to factors known only to the two of you and, depending on your knowledge of each other, these can be extensive and idiosyncratic.
To extend the original conceit, suppose that after dinner you meet Jake, a mutual friend who comes to watch the movie with you both. Naturally, you submit the dispute to him, each of you making your case about why you were reasonable and the other was not. The arguments you will make to Jake will be identical to those you made to each other except that you will supplement them with information known only to the two of you that he should take into account. If Jake is wise or cowardly, of course, he will not take sides. Jake is not one of the parties to the interpretation and lacks all their inside, unspoken knowledge of each other. But he may have a view about which of you more reasonably understood the key phrase.
Let’s call what Jake does “forensic interpretation” because it is the kind of reasoning judges engage in when interpreting contracts, statutes, and other legally-relevant texts. Forensic interpretation always rests on adversarial interpretation. In some cases, it is, metaphorically, the resultant of the vectors of the arguments you and your friend are having.
First-year law students are led to believe that they must seek the “correct” interpretation of authoritative legal texts by learning a special language in which meaning is encoded by other expert speakers of law. They believe that they are engaged in discovery interpretation and will earn an A if they get it right. They are to some extent correct in this belief, but only at a very basic level of learning the meaning of legal words.
But when it comes to construing a statute or contractual term in order to resolve a dispute, they will instead be involved in adversarial interpretation and forensic interpretation in which their performance will not be evaluated by its conclusion but by its method. After all, in life, litigators are not trying to discover a meaning contained in the text but are actively engaged in planting a meaning in the mind of the judge.
Judges’ comments about this process can sometimes mislead the beginning litigator. Judges will always claim that they are engaged in discovery interpretation, not making meaning but finding it. The meaning they say they are after, the one that is hiding in the text, is that which was in the mind of its writer. Here is where the naïve lawyer might ask the judge, “If you want to know what the writer intended by writing this clause, why don’t you just ask him what he meant?”
But judges say they are searching for the intent of an expression steadfastly refuse to take the best direct evidence of that intent even from witnesses who are eager to inform them. Because judges care about the Objective Theory of Contract.
The ancient Heroes of the Common Law all made this point:
We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other’s assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreements of two minds in one intention, but on the agreement of two sets of external signs — not on the parties’ having meant the same thing but on their having said the same thing.
Oliver Wendell Holmes, The Path of The Law, 10 Harv. L. Rev. 457 (1897)
Describing the objective theory of contract law, Judge Learned Hand famously wrote:
A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held to the usual meaning of the words.
Hotchkiss v Nat’l City Bk. of N.Y., 200 Fed. 287, 293 (S.D.N.Y. 1911)
The Big Clock teaches lawyers that interpretation is argument and creation, not discovery and discernment.
The Big Clock vignette illustrates the objective theory of contract. The judge does not care what the parties’ actually intended or meant by their contract language for the same reason that neither you nor your friend could prevail in your restaurant discussion by showing which clock the invitation “really” referred to. Instead, “winning” this argument means giving the most plausible “objective meaning” of “I’ll meet you by the big clock” in the context in which it was uttered.
Incidentally, as an introductory parable about legal interpretation, The Big Clock vignette is also good news for law students. All of us have been making adversarial interpretation arguments all our lives and we all know they are inherently indeterminate. As lawyers, the students should constantly be asked to make and refute each other’s arguments about meaning, not to declare to the professor what the true meaning is from a disinterested position.
Nor will they acquire an essentially different skill if they become judges. Judges rarely create new arguments: they often just adopt and restate the most persuasive of the arguments made by the lawyers appearing before them.
But is it really that easy? How do lawyers and judges “really” interpret legal texts? Do they actually rest their readings on maxims of interpretation, such as contra proferentem? Do they just do whatever they want to do with no fear of failure? Richard Posner, who probably authored more opinions than any living judge, once wrote
Interpretation is an innate, universal, and quintessentially intuitive human faculty. It is field-specific, in the sense that one’s being good at interpreting, say, faces or pictures or modern poetry does not guarantee success at interpreting contracts or statutes. It is not a rule-bound activity, and the reason a judge is likely to be a better interpreter of a statute than of a poem, and a literary critic a better interpreter of a poem than of a statute, is that experience creates a repository of buried knowledge on which intuition can draw when one is faced with a new interpretandum [text to be interpreted]. The “canons” of statutory interpretation belong to the ex post rationalizing function of the judicial opinion.
Richard A. Posner, How Judges Think 113 (2008) (Emphasis added).
When Posner, says that the principles of interpretation are part of the “ex post rationalizing function” of the judicial opinion, he is confirming what we have all seen: interpretation is a matter of argument and persuasion, not of discovery and discernment. We decide on an interpretation first and justify it only later. Because they always have clients, lawyers always have a reason to urge one interpretation over another, whether they are dealing with a statute, a contract term, or any other authoritative legal language. They make interpretive arguments both when they act as litigators with clients and when they act as judges with opinions to justify.
But Posner seems to make two claims that disturb this little picture of adversarial interpretation. The first is only mildly unsettling: Judges who interpret usually follow intuition rather than logic. As always, successful litigators must induce the judge to want to rule in their favor, not just offer them compelling reasons. Intuition often follows desire. Or Posner may mean only that legal interpretation and construction are too complex to be captured by a system of rules and cannot be achieved by a mechanical jurisprudence such as might be applied by a large language model.
The more disturbing of Posner’s claims is that interpretation is a skill that one can do well or poorly. I think he has in mind the ability to understand the specialized texts that lawyers, literary critics, and historians interpret. Law students must learn the professional language of the law in order to interpret certain kinds of legal texts, such as the U.S. Constitution or Article 2 of the U.C.C. And some of that language requires expert interpreters not because it is technical and precise but because it is uncommonly bad in a way that only legal language seems to achieve.
But Posner’s suggestion also has a whiff of the heresy that an interpretation may be best because it is objectively true and that interpretation is discovery, in the sense of decoding, rather than creation, in the sense of argument.
The Big Clock teaches lawyers that interpretation is argument and creation, not discovery and discernment.