Student Fellow Project: Black English for Lawyers

Insight November 7, 2023

Warren Demesme, brought in for questioning by police on suspicion of a crime, was getting a tad frustrated.

“If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it, so why don’t you just give me a lawyer dog cause this is not what’s up,” he said.

He didn’t get a lawyer and subsequently confessed. When the Louisiana Supreme Court heard the case, the only Justice to give an opinion claimed that the “ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

It is obvious that Mr. Demesme was asking for a lawyer, and it is tempting to write this case off as a strange (or willful) but unfortunate misunderstanding. But, as a linguistic matter, there are plenty of reasons to believe misunderstandings will happen that go deeper than single words like “dog” as an alternative to “sir” or “dude.” In Hawaiian Pidgin, for example, the word “neva” (which sounds a lot like “never”) means “didn’t.” And Black English drops auxiliary verbs in the present tense but not the past. The latter led to a misunderstanding in an actual Sixth Circuit case, United States v. Arnold, and the former is just begging to be misinterpreted.

In the Anglo-American system, law has been worried about differences between languages of the court system and the language of the population at least since the Pleading in English Act of 1362, which declared that court cases in England should occur in, well, English. Today, the courts are in “English,” but there are many Englishes. And many of the litigants haled into court (or whose testimony is important) speak something other than the standard English that judges and most legal professionals are most familiar with.

This should not be entirely surprising. Very few lawyers speak dialects that are considered “sloppy” or “uneducated” by many in the public (despite numerous appeals from linguists to show that the difference between language and dialect is almost entirely political). Even many Black students at elite law schools do not speak Black English. It is rarer among richer people, as Harvard students tend to be, and is native to the United States, whereas many Black students at Harvard come from other countries and do not have parents that speak it. The result of all of this is that, in many ways, we have a legal profession and legal system that speak a different language than many of the people they govern and purport to serve.

What little empirical evidence that does exist on the legal system’s grappling with dialect paints a worrying picture. Linguists decided to test a set of court reporters in Philadelphia on Black English. And they found worrying results: Despite being certified at 95% accuracy or above, when faced with Black English, the transcribers on average made mistakes 40.5% of the time. Furthermore, juries have been found to be biased against speakers of Black English.

There is no reason to think these types of misunderstandings are limited to court transcribers, jurors, and judges. Lawyers can also make these mistakes. I was inspired to begin work on this topic from a misunderstanding I watched happen while working at my placement in the Child Advocacy Clinic here at Harvard. A client and speaker of Black English said “she be drunk,” which in the dialect indicates a habitual state (something like “she gets drunk all the time”), and the interviewer understood the phrase as meaning “she is drunk” (at this moment). Thinking about that problem led me to write my student Note on the possible due process implications of dialectal misinterpretation, and I plan to use the support of this Center on the Legal Profession student fellowship to do two things, add to the empirical literature surrounding dialectal misinterpretation and to start the ball rolling on formal training for students at Harvard Law School on common dialects.

As I mentioned before, the empirical literature on the legal profession’s misunderstandings of Black English (and other dialects!) is sparse. The study I am hoping to complete will test an untested aspect of those misunderstandings – private transcription services. Oftentimes, lawyers at the trial level will send audio of something, an interview or even court proceedings if there is no stenographer, to private transcription services to make the record. No one seems to have tested if these services are systematically misunderstanding dialects. My study hopes to do exactly this by having an audio recording sent to these companies that use the same substance in different dialects read by native speakers.

The second goal is to create an infrastructure for students coming into the legal profession to get some exposure, however slight, to different dialects, and at least make them aware of the fact that they should be wary of assuming they fully understand something their clients say just because they both speak “English” or are both of the same race. This might involve creating evaluation for competency in dialect aimed specifically at lawyers and law students and programming that might assist those students going into clinical placements.

I’m hopeful this brief discussion invites people to learn more about my project and the problem writ large. It almost necessarily implicates more than just Black English, but it is a dialect I know and therefore noticed. I am grateful to anyone who thinks about this problem and have shared their experiences with me. For all the legal profession’s focus on language’s importance, it has yet to come to terms with the dialectal rifts within English itself.  

Alex Walker graduated from Harvard Law School in 2023; he was a CLP student fellow during the spring 2023 semester. He is currently a 2023-2024 Rappaport Fellow at Harvard Law School. His research focuses on language and the law, applying linguistics, social science, and philosophy to legal questions. Find his article “Black English for Lawyers: A Primer” on SSRN.