How Do Non-professional Participants of a Trial Cope with the Communication Process at the Trial? The Results of Empirical Research Conducted in Polish Courts

Abstract

The aim of this article is to present some of the results of empirical research on the communication process at a trial conducted in Polish courts. These results will concern the participation of non-professional participants of a trial and the ways in which they deal with the communication process in the courtroom. The article presents the results of the analysis of the research material conducted in accordance with the detailed research questions and analytical categories. The analysis has especially shown that: (1) the non-professional participants used some legal terminology, but the statements without legal terminology were also communicatively effective; (2) the level of activity of non-professional participants related to participation at the trial varied depending on what the activity concerned; the activity in asking questions to the presiding judges regarding legal issues and the course of the court proceedings appeared to be significant; (3) the non-professional participants’ had a real and significant problem with asking questions during the examination (the proper realization of this element of the trial); (4) the statements of the non-professional participants of a trial were very protective; they used many different “linguistic means of protection” (e.g., acts of supposition or acts of doubt) which are connected with the obligation to tell the truth, the prohibition of concealing the truth and giving false testimony during examination; (5) the non-professional participants of a trial reach for adequate argumentative acts, which are suitable for influencing the perception of specific events or persons, and they strengthen their statements by using appropriate linguistic means of persuasion.

Introduction

Globally, the communication process in the courtroom has long been the subject of scholarly research, especially in the common law legal culture1 [among many others, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 21, 27, 29, 32, 33, 35, 36]. In Poland, research on communication in the courtroom does not have such a long and rich tradition. Nevertheless, in the last 20 years, one can notice a growing interest in this issue – both in legal studies and in linguistics. Empirical studies are being conducted, what is particularly important from the point of view of learning about the reality of the courtroom. These studies concern, among other things: (1) features of communication in the courtroom from the point of view of linguistic theories [31]; (2) the issue of questioning during the examination at a trial [4, 34]; (3) the impact of specific changes in the law on the communication process in the courtroom [37]; (4) communication of professional and non-professional participants in the courtroom [20] or (5) the power distance between the court and other participants of a trial and its manifestations in the communication process [17].

The aim of this article is to present some of the results of empirical research on the communication process at a trial conducted in Polish courts.2 These results will concern the participation of non-professional participants of a trial3 and the ways in which they deal with the communication process in the courtroom. This issue is considered in this article to be of particular social importance. The non-professional participants of a trial, due to the formalized nature of the communication process in the courtroom, may encounter difficulties during their activities at the trial. Consequently, it may become a real barrier to access to the court, especially when the non-professional participants are not represented by professional attorneys.

The research, partial results of which are presented in this article, was undoubtedly conducted in a specific legal and cultural context. Nevertheless, many of the problems related to the activity of non-professional participants at a trial (e.g. unfamiliarity with legal terminology4 or creating one’s image at a trial) seem to be typical of communication at a trial carried out in different legal cultures. Therefore, this paper presents not only the results of the research in question but also the detailed research questions and analytical categories according to which the analysis of the empirical material was conducted. At least some of the developed detailed research questions and analytical categories may be used to study the communication process at a trial conducted in certain courts in different legal cultures.

Further discussion is divided into three parts. The first part is dedicated to the methodology for studying the communication process at a trial, some results of which are presented in this article. The next part presents the results of the analysis of the research material conducted on the basis of detailed research questions and analytical categories presented in the tables: 1, 3, 5, 7, and 8. The last part provides the key conclusions of the considerations.

Table 1

Question 1. How do the non-professional participants of a trial cope with the use of legal terms?
1a. Do the non-professional participants use legal terms, including appropriate forms of addressing? If so, what terms do they use on their own initiative?
1b. Do non-professional participants replace legal terms with words and phrases outside that terminology?
1ba. Do they carry out procedural acts in a “non-legal” manner, i.e. without the use of forms typical of lawyers, including appropriate legal terms? If so, are such acts communicatively effective?
1c. Do the non-professional participants take metalingual acts related to the use of legal terms?
1ca. Do they inform the presiding judge (or another participant) that they do not understand the term or the phrase, or ask for clarification?
1cb. Do they state that they do not know how to express a thought by means of legal terms, possibly using a term specific to judicial practice?

Table 3

Question 2. How do the non-professional participants cope with specific procedural roles?
2a. Do the non-professional participants initiate procedural acts?
2b. How do the non-professional participants cope in complex procedural acts that require special activity?
2ba. Is it difficult for non-professional participants to ask questions to the persons examined? How do non-professional participants cope with possible difficulties?
2bb. Does the implementation of free speech during the examination constitute a difficulty for the non-professional participants in the proceedings? How do the non-professional participants cope with possible difficulties?
2c. Do the non-professional participants control the content of the minutes drawn up?
2ca. Do they ask the presiding judge to take a record of certain statements?
2cb. Do they ask the presiding judge to read excerpts from the minutes?
2 cc. Do they draw the presiding judge’s attention to the inappropriate way in which a participant’s statements are transposed into the minutes?
2 cd. Do they supplement or correct their statements in the course of dictation to the minutes?
2d. Do the non-professional participants in the proceedings ask the presiding judge for information on legal issues, including obligations, rights, and competences related to the participation at the trials? If so, what is the presiding judge’s reaction?
2e. Do the non-professional participants ask the presiding judge for information on the acts taken in the course of the proceedings? If so, what is the presiding judge’s reaction?
2 f. Do the non-professional participants use, in connection with the obligation to inform about the facts and to tell the truth, the so-called “linguistic means of security”?
2fa. Do they use modal acts (epistemic modalities – acts of supposition or acts of doubt)? If so, which ones?
2fb. Do they use other linguistic means of security (indicating the source of knowledge, informing that the claim is the result of inference, etc.)? If so, which ones?

Table 5

Argumentative acts of non-professional participants – elements of the theory of attribution

EVENT: beneficial to I unfavorable to I beneficial to HE/SHE/THEY unfavorable to HE/SHE/THEY SHAPING THE PERCEPTION OF THE EVENT AS: STABLE UNSTABLE I always/never… I exceptionally… HE/SHE/THEY always/never… HE/SHE/THEY exceptionally… LOCATED CONTROLLABLE/ NON-CONTROLABLE externally (by the person concerned) internally (relative to the person)

Table 7

Reference	Examples
Feelings and emotions	The witness: “(…) I was upset, very broken (…)” The plaintiff: “(…) I was shocked, appalled by this behavior”
A person’s characteristics (knowledge, skills, experience, attitude, character, or value system)	The witness: “(…) I do not think he had any knowledge (…)” The plaintiff: ”(…) we handled gas inspections with honesty and professionalism” The participant: “(…) the president was a mess, she abused alcohol (…)”
The person’s condition (health, willingness, or awareness)	The witness: “(…) is actually a person who depends on third parties [because of health]” The witness: “(…) we were not aware that it could be so important (…)”
Behavioral characteristics	The defendant: “(…) The lady was very imaginative during her examination” The witness: “(…) He hurt a child, I will never forgive him for that”

Table 8

Systemic linguistic means of persuasion	Examples
The use of persuasive operators such as “after all”, “however”27	The witness: “(…) after all, it is normal” The witness: “(…) after all, they have (…)”
The use of operators referring to the general knowledge or the knowledge of the recipient (e.g., “Everyone knows that…”, “You well know that…”)	The plaintiff: “(…) everyone already knew about it (…)” The witness: “(…) and we all know that (…)”
The use of operators suggesting verification of the information (e.g., “As it turned out…”)	The participant: “It turns out someone falsified our signatures” The witness: “(…) it turned out that a meter was missing (…)”
The use of operators entering the information as routine, repeating (e.g., “As always…”, “As usual…”)	The witness: “Every time we met at the construction site (…)” The witness: “I was walking the dog, as usual (…)”
The use of operators to introduce the information as unique (e.g., “It seems strange, but…”, “You won’t believe that…”)	The witness: “Which I already found suspicious, not very normal” The witness: “(…) I saw a strangely slowly moving car (…)”
The use of operators that directly refer to the speaker’s sincerity (e.g., “Truthfully…”, “To be honest…”)	The participant: “I will be honest, I have never received a salary from him (…)” The witness: “Truthfully, I found out at the last minute (…)”
Thematization of specific information, i.e., transferring it to the presupposed information	The plaintiff: “(…) In my opinion, the fact that they spread false information (…) is already a violation of my good reputation (…)”
Introducing the so-called ‘observer effects’ (e.g., “And suddenly…”, “Imagine…”, “And then she screams…”)28	The witness: “(…) people came suddenly, they jumped out from behind the bushes somewhere” The witness: “And some lady jumped out to us and yelled: ‘Girls, remember the registration number?’ (…)”
The use of operators to reinforce acts of certainty (e.g., “I am [absolutely, totally, completely] sure that…”)	The plaintiff: “(…) I am 100% sure he was eavesdropping (…)” The witness: “No, no, absolutely!”

Methodology of the research5

The aim of the research discussed in this article was to answer two main research questions:

(1) What are the characteristics, in a model approach, of a trial as a complex communication act? and (2) How do the non-professional participants of a trial cope with the involvement in the trial and what is the role performed by a presiding judge in this process?

The above-mentioned research questions were, in particular, caused by a desire to capture the relationship between the actual communication activities undertaken at the trial and its model form. However, what is particularly important here is that these questions have identified two aspects of the research process which have been technically called “analytical” and “empirical”.

As part of the “analytical” aspect of the research (led by the first research question), the genre pattern of the trial, which is considered a complex communication act, has been reproduced. In particular, the normative pattern has been reproduced on the basis of the applicable legal norms, and the usual pattern has been reproduced based on the conduct practice of the participants at a trial.

On the other hand, the “empirical” part of the research (led by the second research question) was based on the empirical data analyzed systematically in this part of the research process.

The primary method of obtaining empirical data was the participant observation of trials.6 The trials observed were recorded by means of a voice recorder and those for which no recording consent was obtained, by means of a written description. The observation was carried out for a year in three Polish common courts acting as courts of first instance. The following types of court cases have been of interest: (1) criminal cases and penal fiscal cases; (2) misdemeanor cases; (3) labor law and social security cases; (4) cases proceeded by family courts; (5) civil cases (in contentious and non-contentious proceedings); (6) commercial cases.7 The percentage distribution of analyzed cases of a particular type (criminal, civil, etc.) was the same as that reproduced on the basis of court reports for the year preceding the start of the investigations. The research material included a record of observations of 250 trials. The recorded audio footage covered almost 160 h of recordings.

The research material thus collected has been analyzed, including a systematic analysis based on detailed research questions and analytical categories developed for this purpose. This systematic analyses covered 177 trials involving non-professional participants.

It should also be added that the objective of the whole research process was descriptive. It was a question of knowing and describing a certain social phenomenon, which is very often the subject of evaluation, including a critical assessment, in the public debate. This criticism is often based on individual experiences of the contact with the court and even on stereotypes.8

The discussed research process was interdisciplinary by nature. On the one hand, the interdisciplinary approach was necessary due to the complexity of the research subject. On the other hand, conducting an analysis according to the standards of interdisciplinary research was challenging. Let us briefly address these issues.

This article assumes that the interdisciplinary research process.

is a process of answering a question, solving a problem, or addressing a topic that is too broad or complex to be dealt with adequately by a single discipline, and draws on the disciplines with the goal of integrating their insights to construct a more comprehensive understanding [30: 9].

This definition also correlates with the following characteristics of interdisciplinary research in the strict sense:

interdisciplinary research is based on active interaction across fields […] often integrates separate bodies of specialized data, methods, tools, concepts, or theories, in order to create a synthetic view of common understanding of a complex issue or problem; it goes beyond a simple sum of the parts [22: 83].

The research on the communication process at a trial presented in this article can be characterized as interdisciplinary research in the above sense.9 In such an interdisciplinary research process, two elements are particularly important – the complexity of the research subject and integration (of assumptions, concepts, theories, etc.).

The subject of the study discussed in this article was the communication process at a trial. Already prima facie, the complexity of the problem can be seen. On the one hand, we are dealing with a communication process, mainly linguistic, which would place it in terms of interest of communication science and linguistics, especially pragmalinguistics. On the other hand, this process is embedded within a specific legal institution – a trial – interest in which we would attribute to jurisprudence. However, if we look at the research subject as a whole, we will notice that this is not a typical object of interest to any of the above-mentioned disciplines. Consequently, it is justified to assume that none of these disciplines has developed concepts, theories, and methods which are sufficient to know and describe the subject of the study as it is inherently complex. Taking into consideration the research subject, jurisprudence, linguistics, communication science, sociology, psychology, as well as philosophy can be considered as potentially relevant disciplines10. Among these disciplines, of course, it is possible to identify those which are particularly relevant for the examination of the communication in the courtroom. These include jurisprudence, communication science, and linguistics.

The research is rooted not only in the achievements of various research disciplines (legal studies, science of communication, etc.), as already mentioned, but also draws on the achievements of various fields of legal studies – legal theory, sociology of law and legal dogmatics (especially civil and criminal procedural studies).

In interdisciplinary research conducted “in the spirit of integrationism”, it is not only about not appealing simultaneously to concepts, theories or assumptions that are in conflict with each other11 but also to ensure that the methodological basis developed is more than just the sum of the found methods, concepts, theories, etc. In the article, it is assumed that

Interdisciplinary integration is the cognitive process of critically evaluating disciplinary insights and creating common ground among them to construct more comprehensive understanding. The understanding is the product or result of the integrative process [22: 223].

The integration process, phrased in this way, is implemented through further integrational actions [25: 212]. A particularly important part of this process is the discovery or creation of a common ground. “Creating common ground is like building a bridge to span a chasm” [22: 270]. The development of a conceptual framework for the entire discussed research process performed a key role in building the common ground. This process has adopted basic definitions and assumptions for analysis and description throughout the research process, such as “communication (communication process)”, “communication act”, “communicational context”, “situational context”, “feedback” or “non-professional participant of a trial”. Due to the scope of this article, the issue of building a common ground cannot be discussed in detail. It should be pointed out, however, that the key term “communication (communication process)” was defined as a complex process which (1) is interpersonal (occurs between people); (2) is socio-cultural (takes place in a specific socio-cultural reality); (3) is symbolic (as a symbol in the strict sense is subject to interpretation); (4) is intentional (which is a consequence of the previous feature); (5) performs different functions, or at least is suitable for that.12

The use of the so-called “linking concept” has also proven particularly useful for building the common ground. There is no space in this article to discuss all such cases. Attention, therefore, is drawn to one case. The concept of genre pattern,13 which was used to reconstruct the genre pattern of the trial (considered as a complex communication act), also allowed for “linking” of the “analytical” and “empirical” parts of the discussed research. Firstly, it was assumed that the knowledge of the genre pattern of the trial co-creates the communication competence of the members of the society. Secondly, on this basis, it was assumed that, in a model approach, judges have the highest level of communication competence in the genre pattern of a trial, while non-professional participants in court proceedings have the lowest.14 Thirdly, it was assumed that participation of non-professional participants in a trial may cause them certain difficulties, while judges may, to a certain extent, counteract these difficulties. Fourthly, the pattern of trial genre reconstructed in the “analytical” part of the study was used to identify potential difficulties faced by non-professional trial participants, such as the use of legal terminology, the performance of procedural roles, including for example, asking questions during the examination.

Non-professional participants of a trial in a communication process: results of the empirical research

As a complex communication act, a court trial may show, with respect to non-professional participants, a high level of difficulty. Firstly, due to the unfamiliarity with the characteristic elements of a trial, and secondly, due to the importance that the participants of the trials attribute to the case being heard. Taking into consideration these two aforementioned parameters, an attempt has been made on the basis of the analysis of the research material to answer the question: How do the non-professional participants of a trial cope with the communication process at the trial?

The following sections will present the results of the analysis of the research material conducted in accordance with the detailed research questions and analytical categories. The analysis concerned the activity of 492 non-professional participants at a trial.

Using legal terminology

The use of legal terminology is one of those linguistic elements that lower the standard of communicativeness of statements. This happens when the participants in the communication process have different levels of communication competence. This is, of course, because the use of legal terminology efficiently requires the achievement of a certain level of communication competence in the field of law (legal communication competence). Therefore, within the framework of the conducted research, it was decided to check whether non-professional participants of a trial use legal terminology at the trial or whether they substitute legal terms with other terms (see the detailed research questions in the Table 1).

The analysis of the research material revealed both trials at which non-professional participants used legal terms and those at which they replaced legal terms with other (common) terms. Let us begin with the former.

Analysis of the research material revealed that the legal terms used by non-professional participants of a trial were related to:

(1) the subject of the court proceedings – e.g. “dividend”, “mortgage”, “construction permission”, “termination of the contract of employment”, “division of marital property”, “will”, “removal of shared ownership”;

(2) the social roles, including professional roles of non-professional participants – e.g. “contribution [to a company]”, “cooperatives’ shareholder”, “audit committee member” “management contract”, “treasurer’s countersignature” “author’s supervision agreement” “construction authorization”;

(3) life experience, including the experience of participating in court proceedings – e.g. “loan”, “divorce decree”, “discontinuance of investigation”, “divorce case”, “promissory note”.

The results of the analysis of the research material in this area show that non-professional participants are comfortable using legal terms that are related to standard legal knowledge needed to perform certain social roles, including professional roles, e.g., housing community member, company member, civil servant, or employer. Moreover, participation in court proceedings itself is a source of experience that enables the development of legal communication competence. This is evidenced by both the use of terms related to the subject of the court case and terms related to the prior experience in participation in court proceedings of the non-professional participant.

It should also be added that the non-professional participants of the examined trials very rarely (only 3 cases) informed the court that they do not know how to express a given thought using adequate legal terms, e.g.

The witness

“(…) this is how it was referred to, I do not know the legal language (…) probably to an article from the community statute (…)”.

As for the latter case, i.e., the substitution of legal terms for other terms, the analysis of the research material yields a number of important results. First of all, the non-professional participants of a trial replaced various legal terms with other terms, e.g. “engagement” [instead of “contract of employment”], “to fire from a workplace” [instead of “to terminate an employment contract”], “to break a contract” [instead of “to terminate the contract”], “three out of five” [instead of “three years’ imprisonment suspended for five years”]. There were over 90 such statements by non-professional participants in which they explicitly substituted a specific legal term for another. What is particularly important here is that such a form of statements by non-professional participants did not disrupt the communication process at the trial. The presiding judges did not admonish the non-professional participants or block their statements. Only in one case did the presiding judge ensure that she understood the statement correctly.

In addition, during the analysis of the research material, there were a total of 41 procedural acts performed by non-professional participants of a trial in a “non-legal manner”, i.e., without using the appropriate legal terms and formulas typical for lawyers. Relevant examples are provided in the table below.

Table 2

Procedural acts performed in a “legal manner” – model examples	Procedural act of a certain type	Procedural acts performed in a “non-legal manner” – real examples
“Your Honor, I withdraw the motion for a witness examination”	Withdrawal of the motion for evidence	The participant: “I think we have come to an agreement, there is no point in questioning witnesses”
“Your Honor, I admit the full claim”	Admission of the full claim	The respondent: “Yes I agree (…) I can take it all on myself”
“Your Honor, I withdraw the appeal against the decision”	Withdrawal of the appeal against the decision	The participant: “Well, I already work, I found a job in Poland, so I work, I withdraw”

Performing procedural roles

The realization of specific procedural roles (of a plaintiff, a defendant, a witness, etc.) is the main challenge faced by trial participants. Therefore, when analyzing the research material, the question was: How do non-professional participants of a trial cope with the realization of procedural roles in which they appear? The research was limited to certain aspects of this issue, because it would not be possible to investigate all of them within the framework of a single research process. The results of the empirical research will be presented below in relation to: (1) initiative and control; (2) activity; (3) protection; and (4) creation of an image. The detailed research questions are presented in the Table 3.

Initiative and control

The activity of non-professional participants can manifest itself in a variety of ways. In this case, it is about such activities that are initiated by non-professional participants. This is because their performing may indicate involvement in the case conducted by the court or control over the course of the trial.

First, the issue of initiating procedural acts by non-professional participants of a trial was examined. The analysis of the research material showed that non-professional participants initiated 40 procedural acts of various types (motions for evidence, postponement of the trial, presentation of a document, partial withdrawal of a claim, etc.), e.g. the plaintiff: “Your Honor, I would like to ask you to enclose documentary evidence to the case file (…), it may be relevant to the case”.

Next, the research material was analyzed in terms of control by non-professional participants of the written minutes.15 Firstly, the analysis of the research material showed insignificant activity of non-professional participants of a trial concerning the request to record a specific statement (only 3 cases). Secondly, not a single case of a non-professional participant requesting a specific part of the minutes to be read was noted in the research material.16 Thirdly, non-professional participants were more active in controlling the way the presiding judge dictated certain statements into the protocol. In the research material, there were 19 cases in which a non-professional participant of a trial pointed out to the presiding judge that he or she inappropriately paraphrased the statement. Most of the cases involved a way of paraphrasing the participant’s statement that altered its meaning, as in the following example:

The presiding judge

[for the minutes] “This [road sign] was posted the day after the hearing….”

The witness

“No, the same day”.

Fourthly, the research material revealed a few (only 6) instances of non-professional trial participants supplementing or correcting their statements dictated into the minutes or already recorded in the minutes.

The last issue related to the problem of activity concerned the answer to the following questions: Do non-professional participants of a trial somehow use their presence at the trial and formulate questions about legal issues, and do they ask questions about the course of court proceedings? The answer to both questions was found to be yes. A total of 47 questions on legal issues (i.e., specific rights and obligations) were recorded in the research material. It should be noted here that the vast majority (40 questions) concerned legal issues related to the court proceedings, including the possibility of leaving the courtroom, ways of performing certain procedural acts or the amount of fees, e.g., the participant: “If I file an appeal, does that involve costs, yes?”

In contrast, the number of questions about the course of court proceeding was small (8 questions). The explanation for this state of affairs could, however, be sought in the significant activity of the presiding judges, who inform about performed procedural acts,17 e.g., the plaintiff: “Excuse me, Your Honor (…) so at the next deadline there will simply be an examination of the parties, yes?”.

Let us add at the end that the presiding judges refused to answer the questions of non-professional participants discussed above only three times. In one case, the non-professional participant asked the question at the moment when she was asked to present evidentiary motions, in two cases answering exceeded the procedural role of the presiding judge (and the court), e.g.,

The participant

“(…) if we are married, the wife takes loans (…) how is it legally, we in marriage are responsible [jointly]…”.

The presiding judge

“The court is not an attorney to advise you how to act. What we are dealing with here is what you are going to say and whether this claim can be accepted (…)”.

Activity

Looking at the normative pattern of a court trial, we can note such elements of it, the implementation of which requires participants of a trial to be more active than the implementation of other elements. These include: (1) free speech during the examination (of a witness, a party in civil proceedings, or a defendant) and (2) asking questions during the examination. Let us start with the former.

According to the normative pattern of a trial, the asking of questions during the examination should be preceded by free speech by the person being examined. This element of the examination can potentially pose difficulties for the non-professional participant because of several issues. First, because of his or her extensive knowledge of the subject, the non-professional participant may not know “where to begin” or “what specifically to talk about”. Second, when testifying as a witness, he or she may not know what circumstances his or her testimony is to address.18 Third, a non-professional participant in a trial may be lost because of the lack of experience in participating at a trial; he or she does not know what is expected.

It should be pointed out that at the trials observed, the examinations were not always conducted according to the normative pattern. Indeed, in many cases they did not begin with free speech but with detailed questions. In those cases that were suitable for analysis in terms of the realization of free speech during the examination, in the vast majority of cases (106), the non-professional participants did not have and did not signal problems with the realization of free speech. In contrast, in 15 cases, non-professional participants faced the difficulties mentioned above, which they also reported, e.g., the witness: “I do not know, should I go through it one by one, how it went?”, the respondent: “I would prefer the Court to ask me questions, because I don’t really know…”. In the majority of cases (10) in such situations, the presiding judge asked detailed questions or gave the floor to professional attorneys who asked questions, in the remaining cases he or she referred to the normative pattern of the examination, adding e.g., what facts are to be proved by the witness’s testimony in accordance with the motion to adduce evidence.

Referring to the latter case, i.e., asking questions by non-professional participants of a trial during the examination, it should be pointed out that the analysis of the research material allows formulating momentous conclusions regarding the participation of non-professional participants at a trial. However, before they are presented, it is necessary to refer to certain elements of the normative pattern of a trial. Asking questions is a constant element of the normative pattern of an examination at a court trial. Thus, if a non-professional participant decides to appear before the court without a professional attorney, he or she will probably face the necessity to ask questions during the examination. In doing so, he or she will have to act in accordance with the legal norms. According to the normative standard for a trial before Polish courts, participants should in particular not ask suggestive or trick questions.19 The questions should, therefore, take the simplest possible form – Who?, What?, When? – and have as few elaborate assumptions as possible.

The analysis of the research material revealed that non-professional participants have a significant problem with the proper implementation of this norms. However, the problem is not only that the questions asked deviate from the normative pattern but also that the non-professional participants, instead of questions, formulate utterances of other types, in particular, statements. Let us look at the results of the analysis in this regard.

The following types of errors were noted within the 88 studied complex communication acts, during which non-professional participants acted as questioners during the examination:

Table 4

Types of errors	Examples
1. Making a statement, including an extended description of the situation, instead of a question (36 instances)	The participant: “After mass, I immediately brought father…” The presiding judge: “Sir, a question – not a statement, yes”
2. Making a comment instead of a question or within the assumption of a question (15 instances)	The plaintiff: “I wanted to ask my sister why she came to court and is lying like this!?” The presiding judge: “This is not a question about the testimony”
3. Asking suggestive questions (11 instances)	The plaintiff: “Are all of these [resolutions] that are being challenged, I remind the witness that the resolution being challenged is resolution number (…)” The presiding judge: “But I would ask you not to suggest answers (…)”
4. Asking questions beyond the scope of the trial or the entire court proceeding (9 instances)	The plaintiff: “In your opinion, does the management board correctly manage the joint property (…)?” The presiding judge: “I will, of course, repeal the question because it is not relevant to the case”
5. Asking questions that are not about facts but about certain regularities or legal issues (6 instances)	The plaintiff: “(…) Based on what legal provision?” The presiding judge: “I’m repealing this question”
6. Quoting or discussing excerpts from prior testimony, and duplicating questions that have already been asked (7 instances)	The defendant: “I am now referring to the testimony of driving behind the tram. You are testifying that (…)” The presiding judge: “Sir, please do not discuss the witness’s testimony, but ask the question (…)”
7. Other, including examples that combine errors of different types (4 instances)	The defendant: “Since you are not my wife, you live with me, but since you are not my wife, you do not live with me. You yourself said ‘everyone lives on their own’ in the year (…)” The presiding judge: “Maybe you should let her answer. You asked, and then you answer yourself. It makes no sense”

Erroneous actions of non-professional participants of a trial evoked a specific reaction of the presiding judge. This took the form of a clarification of the question, an admonition (sometimes combined with information about the error made), or a rescission of the question. In some cases, presiding judge became involved in helping a non-professional participant formulate the correct question, e.g.,

The presiding judge

“Calm down, you are asking too elaborate questions (…)”.

The presiding judge

“Then you need to ask differently (…) This question is suggestive, yes. You have to establish one thing first, then the other, yes”.

The results of the analysis of the research material presented above undoubtedly indicate that non-professional participants of a trial have problems with the proper implementation of the role of the questioner during the examination. However, the reasons for this are not obvious. Probably, the basic reason is the lack of an adequate level of communication competence in communication at a trial. However, in some cases, it was possible to get the impression that the non-professional participants wanted to use the moment for asking questions to present “their own version of events”. Thus, it is not possible, at least for some of the cases, to dismiss the explanation being a deliberate and conscious action not in line with the normative pattern of a trial. However, due to the active attitude of the presiding judges, such actions were ineffective.

Protection

The problem of protection concerns the participation of non-professional participants in the examination and is closely related to the obligation to communicate facts, the prohibition of concealing the truth, and the prohibition of giving a false testimony. The analysis of the research material revealed that non-professional participants very often resort to such linguistic means that make it difficult or impossible to acknowledge that they told an untruth or concealed the truth during the examination. These were called “linguistic means of protection”. The results of the analysis were divided into two classes. The first class includes the use of epistemic modalities (acts of supposition and acts of doubt). The second class includes other words and expressions that perform the role of linguistic means of protection. This division is only to organize the analysis and the way of presenting its results. First, let us look at the epistemic modalities.

The use of a certain epistemic modality (the act of supposition or act of doubt) allows us to avoid making a statement, thus an act of a descriptive character, which can be qualified from the point of view of its logical value (true or false). By introducing a modal judgement into an statement, the author of the statement signals that the state of affairs described is probable to various degrees. Thus, he or she introduces a subjective element into the statement, which makes it impossible to qualify the statement from the point of view of its logical value. Thus, such a statement is protective, which means that a non-professional participant, as if anticipating a possible accusation, indicates that he or she is not sure whether the statement is true, but it is consistent with his or her conviction.20 The research material revealed a very large number, more than 330 cases of the use of acts of supposition and acts of doubt by non-professional participants, such as. “It seems to me that (…)”, “I suspect that (…)”, “Probably it was (…)”, “(…) I just guess”, “Probably it meant that (…)”, “(…) I do not think (…)”, “(…) I am not sure (…)”, and many others.

On the other hand, the second class consists of various linguistic means of protection used by non-professional participants during the examination, of which more than 1,000 were recorded in the research material. These especially include:

(1) argument based on the lack of recollection (over 470 cases), e.g., “I do not remember (…)”, “(…) I do not remember today (…)”, “I do not recall completely”, “(…) I do not remember anymore”, “(…) I do not remember exactly”, etc.;

(2) argument based on the lack of knowledge (more than 280 cases), e.g., “(…) I do not know exactly (…)”, (…) I have no idea (…)”, “(…) I have no such knowledge”, “(…) the reasons are unknown to me (…)”, etc.

The above-indicated linguistic means of protection are related to the prohibition of concealing facts during the examination. Another subclass is formed by linguistic means of protection that relate to the prohibition of giving false testimony. These include such linguistic means through which the author signals that what he or she is saying is consistent with his or her knowledge (conviction) and, therefore, he or she is not lying; however, he or she cautions that this may not be accurate to reality. More than 120 such linguistic means of protection were recorded in the research material, e.g., “(…) as far as I know (…)”, “(…) to my knowledge (…)”, “As far as I remember (…)”, etc.

Another subclass covers linguistic means of indicating the source of knowledge. Thus, if the description of a given event contained in the testimony turned out to be inconsistent with reality, it would not incriminate the examined, unless it was a lie that the examined obtained the given information from the indicated source. There were over 70 such cases, e.g., “It was the plaintiffs who told me about it (…)”, “From what my friend told me, it was (…)”.

Another subclass is formed by statements consisting of subjective elements, which make it impossible to verify them from the point of view of their logical value. There were over 60 such subjective statements, e.g., “And in my opinion (…)”, “In my opinion (…)”, “I believe as a mother that (…)”.

Specific linguistic means of protection were used by non-professional participants of a trial when the statement concerned detailed information, e.g., “Somewhere around (…)”, “(…) somewhere more or less (…)”, “(…) from three to four weeks”. There were more than 20 such examples in the research material.

The last subclass consists of such linguistic means through which the author signals that the information he or she gives is the result of a process of inference, and as we know, this process can be unreliable, e.g., “(…) from the context, it could be inferred that (…)”, “(…) from this letter, I infer (…)”. There were a few such actions (less than 10).

In addition, statements that combined different linguistic means of protection were also recorded, e.g., “I do not remember at the moment, but I think it was more or less (…)”.

The analysis of the research material in terms of the non-professional participants’ use of linguistic means of protection during the examination revealed that their statements during the examination were highly cautious and protective. The use of a variety of linguistic means of protection indicates, on the one hand, the awareness of the non-professional participants of their obligations related to testifying,21 on the other hand, their competence in the selection of linguistic means of protection adequate to the situation. Finally, it can be added that the use of linguistic means of protection by non-professional participants did not cause the reaction of the presiding judge (e.g., an admonition).

Creation of an image

The purpose of court proceedings is to resolve a particular case. Such a settlement requires a choice of a certain vision of reality presented by the parties of a court proceeding. Each of the parties is, therefore, interested in creating a certain image of itself and the relevant piece of reality. Communication acts, which serve this purpose, may refer to certain events (relevant from the point of view of the court case), as well as to certain persons, especially the participants of a trial. In principle, each statement of the participants of a trial may create a certain vision of reality. However, the observation of actual communication at a trial allows us to notice those statements that are more clearly argumentative in nature than others. Taking this into consideration, the research material was analyzed from the point of view of using:

(1) statements that can affect the perception of specific events;

(2) statements that can affect the perception of specific people;22

(3) the use of acts of persuasion aimed at reinforcing the message.

The rules defined in the attribution theory23 were used to develop analytical categories for analyzing the research material in terms of influencing the perception of specific events (see the Table 5).

The purpose of referring to the attribution theory was not to analyze actual perceptions of given events as thought processes of individual participants at a trial, because the research conducted did not allow for this. The categories (rules) that were developed in the attribution theory were only meant to provide a convenient framework for analyzing the communication acts (as argumentative acts) taken by non-professional participants, which, at least assumedly, can influence the way other participants of a trial perceive certain events.

The analysis of the research material revealed that the statements of non-professional participants referred to all the rules distinguished in the attribution theory. Adequate examples are presented in the table below.

Table 6

Rule of	Examples
stability	The witness (the victim): “I was always scratching his hands to defend myself from him” The victim: “He was not cheated on, I never cheated on him”
non-stability	The plaintiff: “This was the first contract I prepared for the author’s supervision, because I had not come across something like this before”
location	The witness: “(…) it was such a malicious act” [internal causes] The participant: “The respondent knew perfectly well from the very beginning that this resolution was invalid (…)” [internal causes] The witness: “(…) I do not see this gentleman’s fault, because what influence did he have on the rainfall (…) it was a storm and it caused this damage” [external causes]
controllability	The plaintiff: “In the meantime, I have been sending out reminders and requests (…)” [controllable] The defendant: “At the last minute, he drove out in front of my car, I just managed to do a steering wheel maneuver and hit this car” [non-controllable]

Each of the discussed argumentative acts referred to the event, which, from the point of view of the court case, is advantageous or disadvantageous for the given party.24 Thanks to the use of the discussed types of acts, non-professional participants create a specific vision of reality and at the same time indicated a specific role (or lack thereof) that particular persons performed in the described events. Thus, some events were beyond the control of specific individuals or were fully controlled. The causes of some events were external to certain persons, while others were caused by external factors.

The types of statements described above do not, of course, exhaust the entire spectrum of argumentative activities influencing perception of certain events by non-professional participants of a trial. The analysis of the research material revealed also statements of non-professional participants of a clearly argumentative nature, which, however, would be difficult to interpret in relation to any of the rules discussed above. This type of acts included those in which non-professional participants used emotionally charged terms to name specific events, e.g., the claimant: “(…) after all, this is a mockery and a lie (…)”, the claimant: “(…) Ms. X was disregarded and thrown out (…)”, the participant: “(…) I think this is a farce (…)” or those in which the importance of an event was diminished or exaggerated, e.g., the witness: “(…) I do not know if it can be called a ‘collision’, it was just a graze of the [car] mirrors”, the witness: “(…) Mr. X made a huge mistake (…)”.

As indicated above, such statements of non-professional participants of a trial, which directly affect the perception of certain persons, their image, because they referred to their characteristics, feelings, values, etc., were considered to be another type of argumentative acts. Adequate examples are presented in the table below.

It should be noted that the research material also included statements by non-professional participants that were suitable for affecting perception of both specific events and directly – specific persons, e.g., the participant: “I did not do it [specific event] because I do not have the strength, I do not have the health [health condition]”. Moreover, it should be emphasized that regardless of whether the statement of the non-professional participant of a trial refers to a specific event or directly to a person, it ultimately still creates (or at least is suitable for doing this) the image of a given person, primarily a party of the court proceedings.

The creation of a particular image of a given participant of a trial is also enhanced by the use of various acts of persuasion. The research material was analyzed in terms of the use of the so-called “systemic linguistic means of persuasion”25 by non-professional participants of a trial. Such linguistic means were taken into consideration, which are suitable for blocking the verification of the veracity of descriptive statements or the accuracy of expressed judgments, or for strengthening acts of certainty and exclusion.26 “Blocking” consists in the fact that the author, through the use of an appropriate linguistic means, signals that he or she considers it unnecessary for the addressee to verify its veracity or accuracy. Examples of such acts of persuasion are presented in Table 8. In total, almost 440 examples of the use of acts of persuasion by non-professional participants of a trial were recorded in the research material. The so-called “observer effect” (almost 120 cases), direct appeal to the author’s sincerity (97 cases), and typical persuasive operators (96 cases) were used most often.

Conclusions

Efficient participation in the courtroom communication requires an appropriate level of communication competence in the genre pattern of a trial. Due to the lack of legal education and relevant professional experience, participation in the courtroom communication may cause certain difficulties for non-professional participants of a trial. In turn, it may result in a real barrier to accessing the court. For this reason, the study of the actual communication activities of non-professional participants of a trial is socially important.

This article presents a part of the research results of the communication process occurring within the framework of trials held before Polish courts. During the research, I tried to especially answer the question: How do the non-professional participants of a trial cope with the communication process in the courtroom? On the basis of the data presented in each section, it is possible to formulate some of the most important conclusions generalizing the results of the analysis of the research material.

The analysis of the empirical material on the use of legal terms by non-professional participants has shown that they formulated both such statements that do not contain legal terms (in particular, they are replaced by terms taken from the common language) and those that do. The contextual analysis of the statements containing legal terms has shown, in turn, that these terms were related to the subject matter of the court case, the professional roles of the non-professional participants, as well as their life experience, including the experience of participating in other court proceedings. Particularly valuable insights were gained from the analysis of the research material in the area of non-professional participants’ performance of procedural acts in a “non-legal” manner (i.e., without appropriate legal terms and formulas specific to legal communication). All acts of this type revealed in the research material proved to be communicatively effective. Performing procedural acts in the non-legal manner was also not a reason for the presiding judge’s reaction (e.g., an admonition). Taking the above into consideration, it can be pointed out that the use of legal terms by non-professional participants of a trial was not a necessary condition for effective communication at the trial. However, it should be added that this does not mean that the use of any linguistic means can provide non-professional participants with communication effectiveness at a trial. In particular, the use of such terms that cause a loss of precision of the message may lead to a misunderstanding, e.g., inadequate interpretation of the content of the performed procedural act.

Moreover, the level of activity of non-professional participants related to participation at the trial varied depending on what the activity concerned. Firstly, when it comes to initiating procedural acts, non-professional participants of a trial showed definitely noticeable activity. Secondly, the activity of non-professional participants related to controlling the written minutes was negligible. However, those instances in which non-professional participants pointed to errors in the written minutes were an evidence of ongoing scrutiny of the creation of the written minutes. Thirdly, the activity of non-professional participants in asking questions to the presiding judges regarding legal issues and the course of the court proceedings appeared to be significant. It should be noted that non-professional participants asked about the course of proceedings incomparably less frequently than about legal issues. The reasons for this issue may be in particular attributed to the significant activity of presiding judges in informing the participants of a trial about the procedural acts undertaken.

On the basis of the normative pattern of a trial, it was considered that special activity of the non-professional participants is required to formulate a free statement during the examination and to ask questions during the examination. With regard to the first issue, it should be pointed out that free speech sometimes caused non-professional participants a problem, which they usually reported, although much more often they had no problem with the realization of this part of the examination. As for the non-professional participants’ asking questions during the examination, analysis of the research material revealed that they had a real and significant problem with the proper realization of this element of the trial. The analysis of the research material revealed a wide variety of errors made in this regard by non-professional participants of a trial.

Furthermore, the analysis of the research material also revealed that the statements of the non-professional participants of a trial were very protective. The use of the so-called “linguistic means of protection” (acts of supposition and acts of doubt, arguments based on the lack of recollection or the lack of knowledge, etc.) is connected with the obligation to tell the truth, the prohibition of concealing the truth and giving false testimony during examination. The use of such a number and variety of linguistic means of protection testifies, on the one hand, to the awareness of certain obligations of the examined persons (about which, by the way, they are instructed), as well as to the level of communication competence, which allows for the selection of adequate linguistic means of protection, i.e., such that make it possible to avoid the charge of telling the untruth, concealing the truth, or lying.

The last issue concerning the participation of non-professional participants of a trial concerned the creation of an image. The essence of the dispute in court proceedings, especially, is that each party proposes a certain vision of reality and creates its own image. The analysis of the research material has shown that non-professional participants of a trial reached for adequate argumentative acts, which are suitable for influencing the perception of specific events or persons. Moreover, they strengthened their statements by using appropriate linguistic means of persuasion. Thus, non-professional participants of a trial used adequate linguistic means when creating their image in the course of legal proceedings.

Finally, it should be added that the COVID-19 pandemic has caused the trials in Polish courts to go online. This situation has raised new issues and challenges for their participants that should be subjected to the study. At the same time, the problems discussed in this article are still relevant.