Complex or Common Sense

From: Eric Weiss (
Date: Fri Sep 20 1996 - 06:10:54 EDT

A search for something else took me to this WEB site:

from which I excerpt a page below of what is a 9+ page text file. I think
the lawyer's discussion is relevant to B-Greek (i.e., whether the NT might
sometimes be better understood by using common sense than by complex
grammatical analysis--this might oversimplify some issues, though) and hope
if you find this excerpt tantalizing that you read the entire article. If
you cannot access the WEB, I can e-mail you the whole text file upon

                        IN DEFENSE OF COMMON SENSE:
                        HAS NO PLACE IN LIBEL SUITS

                           By Jonathan D. Hart *

+ 1996 Dow, Lohnes & Albertson, pllc

"A line will take us hours, maybe," wrote William Butler Yeats, "But if it
does not seem a moment's thought/Our stitching and unstitching has been
naught."1 Apparently convinced that journalists are as deliberate about
their craft as poets are about their art (or, at least, that juries can be
convinced that they are), libel plaintiffs have increasingly called upon
linguists, "news media analysts," psychologists, and a class of scholars
who call themselves "psycholinguists"2 to offer expert testimony on the
defamatory meaning of the statements they challenge; some such experts are
even prepared to testify, based exclusively on analysis of the language
employed, that the defendant journalists intended to imply the hidden
meanings these experts divine.

Such testimony has no place in a libel action. The law is well settled that
whether a given statement is defamatory is to be determined not according
to "the painstaking parsing of a scholar in his study,"3 but according to
how ordinary people understand the statement.4 And common sense tells us
that since jurors are, by definition, ordinary people, they have no need
for, and would not be assisted by, expert testimony as to how ordinary
people, like themselves, would understand the language they are called upon
to evaluate.

With few exceptions, the law has taken this common sense approach to the
admissibility of expert testimony on the defamatory meaning of language in
ordinary usage.5 Though reported decisions remain few (considering the
frequency with which anecdotal evidence suggests such expert testimony is
being proffered), the trend is clear: expert testimony on the meaning of
ordinary language (or on the speaker's mental state as divined from his
choice of words) is inadmissible at trial (a) because it does not help the
trier of fact decide whether the challenged language is defamatory6 and (b)
because it is likely to distort the fact-finding process by "transform[ing]
a common sense issue into a technical one" dominated by "virtually
incomprehensible pseudo-scientific jargon."7 And there is an additional
reason to exclude such testimony at the summary judgment stage: where the
libel defendant argues at summary judgment that the challenged language is
not susceptible of the construction urged by the plaintiff, expert
testimony on the meaning of ordinary language is useless since the
determination of whether given language is susceptible of a defamatory
construction is a question of law for the court, not a question of fact
that might be illuminated by expert testimony.8

This archive was generated by hypermail 2.1.4 : Sat Apr 20 2002 - 15:37:51 EDT