Abstract
Excerpted From: L. Alexanderer Walker III, Black English for Lawyers: A Primer, 113 California Law Review 81 (February, 2025 (251 Footnotes) (Full Document).
Let's start with a quiz. Three scenarios. Scenario one: Imagine a man, let's call him Marcus, is on trial for attempt and is on record having said,I was tryna break in, but I decided against it>. Scenario two: Imagine a witness, LaTanya, said,the tall man knew John shot him>. And finally, scenario three: Imagine a defendant, let's call her Keisha, said,Mary come talkin' bout I stole the TV>.
Despite how it might initially seem, in all likelihood, Marcus did not attempt to break in but merely wanted or intended to before deciding against it, LaTanya was trying to say the tall man (not John) committed the murder, and, if anyone, Mary (not Keisha) confessed to stealing the TV. The reason you might have (and courts have) misunderstood these sorts of sentences is because there is more than one kind of English going around, and law has an English problem-- a Black English problem.
From state court stenographers to opinions in federal court, the U.S. legal system is not equipped to handle Black English. A lack of earnest conversation between lawyers and linguists has left a textbook-shaped hole in the scholarship. This Article hopes to serve as a step toward untangling the knot by making lawyers more familiar with basic linguistics and Black English. Everyone is familiar with the word,be>but few know its depths.
Many liken learning the law to learning a new language. Sometimes that language is Latin when students try to get their remittiturs and additurs straight, and sometimes that language is the unlearning of whatever you thought the words ““negligence” or “reckless” meant before taking torts. But even having mastered legalese, lawyers who do not understand the dialects of English that they will run across in their practice will be less effective than they could be. To practice in the United Kingdom without knowing what lifts, loos, and the chemist's are would be problematic, and to practice in the United States without knowing the difference between,she running>and,she be running>is similarly so.
The point is, English is not a monolith, and one of the most widespread and misunderstood dialects of English in the United States is Black English. But because Black English natives are fluent speakers of “English,” interpreters are not provided in the court system. Still, rampant misunderstanding is neither acceptable nor inevitable. And just as an Australian might learn to practice effectively in rural Scotland with a bit of studying up, speakers of Mainstream American English can learn to properly represent speakers of Black English with similar training. Lawyers do not need to become proficient speakers of Black English, but they do need to be aware of the most important differences and have a sense of where misinterpretation is likely to happen. If lawyers were more aware of Black English and its most prominent features that are likely to be misunderstood, we would be in much less of a mess.
Consider the Black English word,tryna>in the sentence,they was tryna arrest me, but they didn't>. Reading this as “they were attempting to arrest but failed at it” would lead to very different facts from the likely correct reading of “they wanted to arrest me but didn't end up doing so.” Similarly,,we was tryna break in, but I left before they did>if read incorrectly sounds like a confession of attempt rather than an indication of a repudiated desire.
In 2021, the Eighth Circuit revealed its own susceptibility to the Black English problem. In a Facebook message, a defendant was recorded as replying ““Yea” to the question of if he was “tryna get ah glick.” The court held that these Facebook messages “revealed that [the defendant] attempted to trade” for the gun. It didn't--not necessarily at least. The,tryna>here is just as if not more naturally read as expressing desire than an attempt. So, the court should not have concluded so hastily that this was conclusive evidence of attempt.
Or, for one more example, consider hearing the sentence,I'm fitna be admitted (to jail)>. In 2015, police had this transcribed not with the correct meaning of “I'm going to be admitted” but instead “I'm fit to be admitted.” Regular sounds and grammar in Black English can cause confusion.
Without significant progress amongst lawyers and those who work in the legal professions like stenographers, judges, and police officers, we will continue to have people denied their constitutional rights, misunderstood as speaking in the past when they are speaking in the future, stereotyped by juries, and misreported on official transcripts on which the appellate process relies--all on account of foreseeable linguistic differences. Previous work has documented these errors and argued for their constitutional significance.
Fortunately, some in legal academia, mostly students it seems, have noticed the problem. Those pieces, however, focus primarily on documenting the problems rather than teaching enough Black English and linguistics to start to solve them. There is also a tendency toward the categorical in much of the existing legal-linguistic scholarship on Black English that should be cautioned against. So, this paper offers a Black English reference aimed specifically at lawyers.
Accordingly, the goals here are limited and different from previous scholarship. Documenting the errors courts have previously made and drafting policy solutions are for another day. While the linguistics literature is hugely important, the aims of that literature are not usually to teach legal practitioners (or really practitioners of any kind) but instead to document and analyze. This paper is a crash course and a reference guide. To that end, I have tried to keep the relevant Sections as short as possible while retaining linguistic accuracy. And, more importantly, I have gathered numerous, real-world examples. The Sections are also structured to be as independent of one another as possible, so you need not read this straight through to gain something.
Part I clarifies some terms (linguistics, language, and dialect in particular), defends the need for linguistic descriptivism when dealing with language in a faithful interpretive capacity, and gives some basic background on Black English.
Part II is the meat and gets into the sounds, grammar, and social context of Black English lawyers might need to know. One quirk of teaching language through an essay is that the Black English I am talking about is primarily spoken, but the ability to hear the sounds is somewhat fundamental to any spoken language. Linguists have a special alphabet for this--the International Phonetic Alphabet or “IPA.” They use it because using the orthography of any particular language can often be ambiguous--English is a terrible offender (consider: tough, cough, through, though, bough, etc.). Part II also provides a list of “easily misunderstood” constructions, such as homophones and near homophones, so lawyers going over transcripts will have a reference for possible mistakes in transcription or spelling variations speakers of Black English use that might otherwise baffle.
Because the aim is to reduce barriers to entry, this Article has a companion website: https://www.californialawreview.org</print/black-english-for-lawyers-an-audio-repository. There, one can hear curated examples of sounds and sentences. The readings come mostly from movies, shows, the internet, and songs.
To be clear, regional and individual differences exist in Black English just as they do in any language with more than one speaker. Capturing the full diversity in a short introduction like this is impossible.
What follows will hopefully reduce needless misinterpretation and help us come closer to living up to the promises of a profession that claims to think carefully about language and words. But, if you learn anything from this Article, let it be that language is not static. Honest methodology for determining what someone has said cannot be limited to glancing at dictionaries, lurking on online forums, or just reading a relatively abstract article like this one. All of these are quickly obsolete. This Article provides context, not dogma. Lawyers must constantly refamiliarize themselves with language. Language will evolve while this Article will not. We must change the way we approach language, not just the sources we trust.
[. . .]
>
If I took a poll of lawyers today and tried to get them to explain the difference between,she at work>and,she be at work>or,they was tryna arrest me>and,they tried to arrest me>I fear the results would be disheartening. Alleviating that fear is this Article's genesis and raison d'être.
My proposal is modest. I am not here to argue that the legions of lawyers in this country need to become fluent in Black English but rather that they should at least become familiar with the main features of language varieties they often run across in practice--including Black English. At the very least, we should know where to go when we do not know something, be humble, and avoid as many assumptions as possible.
Technology is developing fast, and some believe that AI will come down as a god from the machine. In a world where near-perfect, instantaneous dialectal translation is possible, many problems go away. That is not our world--at least not yet, and I would be a fool to predict in writing when if ever such a technology might come to be. Machine learning's role in the Black English problem is a topic for an entirely different paper, but one thing is clear: anyone claiming proficient-machine transcription or translation of “English” might often need to be more specific. Whatever they are, the governing AI rules should be extraordinarily clear to guard against systematic bias, but we should also be sober in considering how (in)accurate humans might be at such tasks.
Another way the problems might dissipate is a thoroughgoing homogenization of language. This seems to be entirely plausible--provided that the world population shrinks to about a thousand and we begin to raise our children in common as Plato might have liked. Linguistic diversity, as far as we can see back, ain't never not been the case. “Spanish” and “German” or, even more dramatically, “Chinese” and “Arabic” explode with internal variation. In the case of Chinese and Arabic, calling them single languages is misleading. To be sure, languages die out, but living languages always change--Black English included. In fifty or even twenty years, it would be strange if this Article did not sound quaint. And in the, as I see it unlikely, event that Black English goes extinct in the near future, other varieties would emerge, and linguistic ingenuity would fill any social nooks and crannies the Central Planner forgot to caulk. In considering these questions, then, we must never forget that it is a methodology we are expounding.
Even if one wants it, homogenization is almost certainly not going to happen naturally. And if there were concerted efforts on the part of the government to assimilate, as many governments have tried, they might succeed in killing off some languages. But unless there were social cohesion and equality the likes of which the world has never seen, it is implausible that this would eliminate the need for care being paid to dialect. And that is all before we consider the acute moral implications wrought by killing off languages with cultural significance for judicial economy's sake. Black English is likely to stick around for a while, whether anyone, you and I included, likes it or not.
The unfortunate truth is that this Article is only the beginning of the work that needs to be done to ensure dialect issues are handled with the care they deserve in this system. And Black English is not the only dialect of English that both deserves and needs attention. This country has Latin Americans, Native Americans, Appalachian Americans, Southern Americans, Hawaiian Americans, and many, many others who have their own distinct, native varieties of English. It would not be possible or reasonable to ask lawyers to master all of these dialects. But they are expected to master and manipulate the language of courts and statutes, treaties and constitutions, to make structure out of the often-messy reality of language. And similarly, they must learn to effectively navigate the most common dialects in their practice and also how to deal with new dialects when they come up. We are a long way off from a legal system that is nimble enough to justly handle the range of people subject to our laws. It's been a lot of things need to get done.
Law Clerk to Hon. Alison J. Nathan, United States Courts, Second Circuit | 2024-2025; Rappaport Fellow, Harvard Law School | 2023-2024; Fellow in Law and Applied Neuroscience, Center for Law, Brain & Behavior, Massachusetts General Hospital | 2023-2024,
