FRANK, Circuit Judge.
1. Plaintiff complains of this only, that the judge erred in that part of his charge, quoted above, concerning the burden of proof, when he spoke repeatedly of the jury's "conviction."
2. Courts and commentators have said that, in the ordinary civil suit, usually a judge commits reversible error if he instructs the jury that the plaintiff cannot recover unless he "convinces" them (or the like).
"Preponderance" is but a long latinism for the short English words "weigh more." Today, it is merely a metaphor; it suggests that, when the jury considers the evidence, it is as if the evidence were weighed on a scale. The metaphor reflects ideas dominant in a long distant past. For, once upon a time, centuries ago, this metaphor received an almost completely literal interpretation: each item of testimony was then assigned a quantitative value or specific weight.
The quantitative method of assaying evidence has long been abandoned. But the old idea recurrently attracts those who are hot for certainty: In the nineteenth century, Jeremy Bentham proposed that the courts use a sort of "thermometer of persuasion";
Yet we still strive to guide juries with the metaphorical term "preponderance." Attempting to explain it to jurors, trial judges speak of "weight" and "scales," thus tending to impress on the twelve "lay gents" something which approximates the metaphor's literal meaning: "The application of the phrase `preponderance of the evidence' is apt to lead the judicial discussion close to the danger line of the fallacious quantitative or numerical theory of testimony."
Recognizing the imponderable effects of "preponderance" on jurors, one may (to repeat) wonder whether it is true that "conviction" or "convinced" conveys something greater to their minds. Perhaps the judges at one time had a basis for the idea that it does. But today we lack any solid foundation for that idea. For alterations in word-fashions notoriously cause words to undergo changes of meaning.
Judge Wanamaker, some 17 years ago, learned from a considerable number of former jurors that they had found "preponderance of the evidence" the most difficult legal term to understand.
"Lawyers," said the literary critic John Mason Brown, recently, "are excused from the necessity of interesting their readers, and all too often — let's face the evidence — they take advantage of this enviable exemption." But a
It is idle, then, to hope that all language — legal language included — can be made entirely ambiguity-proof,
Nevertheless, at least until such time as we have satisfactory returns from checks of popular reactions to the traditional formulas, we think we should adhere to the ruling that, in an ordinary civil suit, such as the instant case, words like "convince" and "conviction" should be shunned in a jury charge. But here, before the jury had retired, the judge had correctly charged that the burden was on the plaintiff to prove his case "by a preponderance of the evidence"; and, although the language above criticized was also included, no exception was taken to the charge at that stage. We think that nothing thereafter occurring could have reasonably given the jury to understand that the correct instruction theretofore given was modified. However that may be, reading the charge as a whole, we think the instructions were legally sufficient and leave no room for a just inference that the verdict was legally defective.
Consider, too, the ordeal of the scales.
By this device, the trial court would estimate the value of each witness' testimony to a nice degree on a scale running from 1 to 10 or 1 to 1000. In this way, such testimony would be measured in terms of so many degrees of positive or negative persuasion. So, for instance, it would be noted that the "persuasion is at 9 above," just "as in speaking of temperature, a man says, the mercury stands at 9 above." "For want of an adequate mode of expression," said Bentham, "the real force of testimony in a cause has hitherto been exposed to perpetual misinterpretation. * * * Old measures of every kind receive additional correctness: the electometer, the calorimeter, the photometer, the eudiometer. * * * Has not justice its use as well as gas?"
Best, Evidence (12th ed.) 62, rejecting Bentham's "therometer," says, "The substitution of arithmetic for observation and reasoning, when estimating the value of evidence, is not confined to past ages."
Cowan, 96 U. of Pa.L.Rev. (1948) 484, 490, writes of a need for "credibility scales."
Sleeping metaphors can be awakened. Richards (loc. cit.) 102, notes that the "distinction between dead and living metaphors" is "itself a twofold metaphor."
Murry, Countries of The Mind (1931) says that, since metaphor is as "ultimate as speech itself, and speech as ultimate as thought," to investigate metaphor is like investigating "any of the primary data of consciousness: it cannot be pursued very far without our being led to the borderline of sanity. * * * The earth trembles and yawns beneath the explorer's feet. * * * Therefore we instinctively seek to circumscribe our own inquiries by leaving out of account, as far as may be, the countless lost or dormant metaphors of which the most part of language is composed. * * *"
Even common words, such as "quickly" or "lively" contain "ly" which originally meant "like."
One can sympathize with the commonsense reaction of the 18th century physiologist, William Hunter: "Some physiologists will have it that the stomach is a mill, others that it is a fermenting vat, others that it is a stew-pan; but, in my view of the matter, it is neither a mill, a fermenting vat nor a stewpan but a stomach, gentlemen, a stomach." Quoted in Muller, Science and Criticism (1943) 106. (Yet a stomach abstracted from a body is a fiction.)
But see Collingwood: Language "never is its own meaning and is therefore always symbolic or metaphorical; but, when this fact is as yet undiscovered by the user of language we say that he is using it `metaphorically,' and when he realizes that words are mere symbols and distinguishes what they are from what they mean, then by facing and accepting the metaphorical character of all language he has overcome it and is henceforth using it `literally.'" Collingwood, Speculum Mentis (1924) 157.
Richards (loc. cit. 132) remarks that "there is no whole to any analogy; we use as much of it as we need; and, if we tactlessly take any analogy too far, we break it down."
Brooks and Warren, Modern Rhetoric (1949) 426, say that an effective metaphor must be neither too "far-fetched" nor too "nearly fetched." See also Embler, Metaphor and Social Belief, 8 Etc. 9 (1951) 83.
As to the paradoxical (or pun-like) character of metaphors, see, e.g., Frank, Some Tame Reflections on Some Wild Facts, in the volume Vision and Action (1953).
He quotes Dante: "Since man is a most unstable and variable being, language cannot be long-lasting nor stable; but like other human things such as customs and dress, it has to vary in space and time."
Hall also quotes Horace: "Words which are now in honor fall into disuse, if usage so wills it."
McBaine (255) remarks that "beyond a reasonable doubt" is far less puzzling to laymen, and approves (257) of the "view frequently expressed that no explanation of the term is helpful to the jury." See also 9 Wigmore, § 2497, pp. 318 et seq.
"Once, when counsel was citing case after case to establish the meaning of a will made by an old woman, Lord Mansfield is reported to have interrupted: `Sir, do you think that this old lady ever read those cases or would have understood if she did?'" Holliday, History of English Law, 127, quoted in 3 Corbin, Contracts (1951) 23, note 23.
Whitehead warned that, from too much respect for the possibilities of language, there issues a demand for impossible clarity: "Insistence on clarity at all costs is based on sheer supersitition as to the mode in which the intellect functions." He also spoke of the "dangers of a logic which presupposes linguistic adequacy," and said that "the success of language in conveying information is vastly over-rated, especially in learned circles." Whitehead, Adventures of Ideas (Pelican ed. 1942) 89, 165.
J. Stone declares that the ability of courts wisely to adapt old legal rules to changing conditions is "due to the fact that the same norm is used but with a changing meaning, the same verbal formulas with an apparent identity of substance which is verbal only"; Stone, Fallacies of the Logical Form, in the volume Modern Interpretations of Legal Philosophy (1947) 696, 721. See also Max Radin, The Trail of the Calf, 32 Cornell L.Q. (1946) 137; Frank, Law and The Modern Mind (1930) 26-31, 60-61; Frank, If Men Were Angels (1942) 313; Levi, An Introduction to Legal Reasoning (1949) 73-74. For a somewhat cynical discussion, see Seagle, Law, The Science of Inefficiency (1952) 23-30.