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Advance Sheet: A Duck or Rabbit

American Bar Association, The Journal of the Section of Litigation
Robert E. Shapiro

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

As five-dollar words go, you can't do much better than "hermeneutics." Try it out at a dinner party some time. Certainly no one will be able to spell it. Nary a person will know what it means. And it is sure to mark you as someone who could not possibly be a lawyer. After all, what could such a highfalutin term have to do with the practice of law? It's not even in Latin.

Still, few things have a greater impact on what lawyers do all day long than hermeneutics. In its most technical sense, hermeneutics is the science or theory of interpretation, most commonly applied to the reading of Scripture. And lawyers are interpreters, aren't they? True, they don't spend much of their time probing the inner workings of the Good Book, however beneficial that might be in this time of acutely challenged professional ethics. But they do something rather similar. They are constantly trying to make sense of the oftentimes oracular statements of the courts. Not to mention Congress. And their job is to underĀ¬stand not only what a particular case or statute may say or require, but also how that case or statute must be understood within the larger fabric of the law generally. Lawyers are all about how to interpret what they see and read in the law.

Nor is this all. The role of the litigator, for example, is to serve as the interpreter of the facts, vying with opposing counsel to persuade a third-party jury or judge to see events this way or that. What litigator does not work hard to try to have the critical events understood in just the right way? Did your client breach the contract in the first instance or was it just responding to an anticipatory breach by the opposing party? Was your client negligent in failing to yield at the intersection or was the opposing party's sudden action to blame? These disputes seem like fact questions, but often they aren't really. They concern how we see the facts, not what the facts are, how we might interpret what happened, not simply what the happening was.

And then there are the courts, which try to reach just the right conclusions from the presented facts or, at the appellate level, to decipher a pre-established record. Judges and juries are all about making sense of what they see, hear or read, using their common sense, judgment, and learning to interpret the matter brought to them by the litigants. Was the driver's excess speed the reason the crash occurred or did the other driver's swerve make it inevitable? Was the judge below relying on the witness's credibility or was that unnecessary to the decision? In hundreds of ways every day lawyers and judges are interpreters.

Now there's a funny thing about interpretation that even these humdrum examples help to show. As any hermeneuticist worth his pocket protector will tell you, where you start may determine where you end up. How we understand what we read in the law or see in a set of events is in some sense determined by what assumptions we begin with, the context within which we begin the inquiry. Words are understood not just within a sentence or paragraph, but within a whole verbal context laden with ideas and imparting meaning. Events are understood within the familiar patterns of daily life. What you think of them may depend on the otherwise recognizable circumstances in which they occur.

Just how true this is can be simply demonstrated by borrowing an image used by the twentieth century thinker, Ludwig Wittgenstein. Okay, so Wittgenstein is not exactly a household name, not the first guy who comes to mind when you are thinking about reading a legal opinion or doing your opening statement. But he can be helpful nonetheless. One of his great examples is an image you can display at that same dinner party with marvelous effect. Here's how it goes. First, you may be presented with a sketchy kind of drawing that would make any third-grader proud. It looks something like this:

Got it? Even before you surround this picture with other images of furry, crinkled nose creatures or a carrot patch or Easter eggs, you know what you've got. It's a rabbit, plain and simple, right? End of story.

Unless it isn't. Take the identical picture and turn it 90 degrees. The results are startling:

No longer are you so confident. Viewed in this context, images of the angry farmer in Peter Rabbit seem more than a little out of place. Even without drawing in the waves, or a verbal balloon with a loud "QUACK" coming from the beak, what you tend to see is a duck. Same drawing; different result. All it really took was a turn of the page.

So is it a duck or a rabbit? It depends on how you hold the page, but which way are you to hold it? At this point, the surroundings begin to make a difference. The carrot patch or water line or verbal cue would add to your confidence that you were looking at the figure correctly.

About Litigation Journal

Litigation, published quarterly, is the preeminent journal in the field of trial practice. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.


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