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Monday, July 19, 2004

"Yuh-huh"/"Uh-huh" versus "Nuh-uh"/"Uh-uh"

Linguist and guest blogger Neal Whitman, writing on The Volokh Conspiracy this week, wonders whether there's a generational correlation to explain those who say "yuh-huh" — instead of "uh-huh" — to mean "yes."  He may be right.  Although I'm a Buffy fan, I'm old (and perhaps tragically unhip) enough myself to be a consistent "uh-huh"-er — as (if I recall correctly) was my ex-wife (on those unfortunately-all-too-rare occasions when she was agreeing with me about something).  I'll have to listen to my own kids to see which they tend to use.

Actually, this is something to which I've given considerable thought and study — professionally, although as a lawyer rather than as a linguist!

There are at least two variations on the negative version, too:  "nuh-uh" and "uh-uh."  In my experience, some people use both variations — with "nuh-uh" (often with the second syllable stressed) the more emphatic, and "uh-uh" (usually with both syllables equally stressed) the more casual.

With either set of variations, court reporters sometimes have difficulty distinguishing between the affirmative version and the negative version.  Even if the court reporter hears and understands it correctly, there's sometimes ambiguity created in the way the court reporter transcribes what he or she has heard into the written transcript.  "Mmm-hmmm" and its almost untranscribeable negative counterpart ("mph-mmm"?) are even harder to handle — although I suspect they have a whole section devoted to these sorts of "in- or semi-audible responses" in the court reporter school curriculum.  (It is the rare but splendidly self-confident court reporter who will include in the transcript something like, "[Witness grunts affirmatively.]")

And even if the court reporter gets it absolutely right and transcribes accurately the noise the witness made, it's fairly plausible, and hence not uncommon, for a witness who wants to avoid being caught in a contradiction later to claim that the court reporter just got it wrong:

Naw, I actually said 'uh-huh,' but that court reporter girl, she just wrote down 'nuh-uh,' but I always meant 'yes,' no matter what it says there in that booklet you're reading from."

For these reasons, whether it's during pretrial examinations (depositions) or trial examinations, experienced trial lawyers often include among their "initial understandings" with the witness an explanation that the witness needs to try to avoid saying "uh-huh" or "huh-uh" or variations on those phrases.  Even the most hostile witness has to agree with this request.  But of course, it's asking a lot of any witness that he or she self-police his or her language to completely avoid these expressions.

Thus, especially during cross-examination of a hostile witness, when one is allowed (and usually ought) to ask "leading" questions (which try to elicit the witness' agreement with a pre-suggested answer), REALLY experienced trial lawyers have trained and conditioned themselves to ask — instantly, reflexively, automatically — "You're agreeing with me, is that correct?" — whenever they hear a witness answer a yes/no question with "uh-huh" (or "yuh-huh").

Especially when it's asked instantly, without even a beat's pause, even sloppy and inarticulate witnesses, and often very hostile ones as well, will almost always immediately answer this followup question with a single word — "Correct."  And then not only has the lawyer ensured that the transcript will be unambiguous if any question should later arise about the witness' answer, but he or she has driven home again the concession or agreement just extracted — and subtly reinforced the subliminal message that "I, the righteous master advocate in this courtroom, have forced my adversary to acknowledge that I am correct yet again, because I already know what all the evidence is going to be, and I'm rarely if ever going to be surprised by it."  Nor will one likely be met with an objection — "Asked and answered already!" or "Cumulative!" — since the questioner is not, technically, belaboring the point, but simply complying with all advocates' duty to try to promote a clear, clean record of the proceedings.  To put it bluntly, "uh-huh" or "yuh-huh" — when properly exploited — can be the trial lawyer's friend!

If, by contrast, one gets a "nuh-uh" or an "uh-uh" from a hostile witness when one was expecting and hoping for a "yes" (or an "uh-huh" or a "yuh-huh"), it may sometimes be to the lawyer's (and his/her client's) advantage to leave that answer somewhat vague and unclear in the transcript.

There are other ways to make the clarification, and one sometimes has to use them when one is not allowed to lead (as when one is examining a friendly witness with a judge or opposing counsel who's being a stickler for evidentiary rules) — for example, the simple "Was that a 'yes' answer or a 'no' answer?"  This lacks the element of witness control and the subliminal message to the jury, but does suffice to make sure the transcript is clear (when and if that's one's goal). 

Sadly, however, I see lawyers every day who attempt to clear up these points in the record but who, through their own inarticulateness, end up only making things worse — usually by re-asking a variation of the question, oftentimes inserting a double-negative to boot:

Is it not the case that just now, when you answered "nuh-uh," you were saying that the traffic light had not turned green for the traffic headed north before you drove into the intersection?

Yes, this lawyer just sounded like the erudite and learned Rumpole of the Bailey.  But whether the witness answers this question "yes," "no," "huh-uh," or "yuh-huh," no one can possibly be sure that the witness has correctly understood the question or that the listening audiance has correctly understood the witness' intended meaning.  (Did that "yes" mean, "Yes, that is not the case"? or "Yes, the light had not turned green"?  It could have been either!)  Double-negatives are hard to avoid — but the phrase "is it not the case?" should simply be taken out and shot, repeatedly.

Posted by Beldar at 05:39 PM in Family, Humor, Law (2006 & earlier), Trial Lawyer War Stories | Permalink


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(1) TP made the following comment | Jul 20, 2004 4:48:59 PM | Permalink

Nice to have you back again. If the next post doesn't come until September 19, though, I'm going to be peeved.

(2) Milbarge made the following comment | Jul 21, 2004 6:47:59 PM | Permalink

Fascinating post. I do appellate stuff, so I don't have to worry about making the record, just reading it. And I haven't any issues hinging on translating grunts. I don't know if this is a common practice nationwide or not, but I have seen a lot of transcripts with "Uh-huh [affirmative]" or "Uh-uh [negative]." It's simple and helpful, but of course can still be disputed.

(3) Beldar made the following comment | Jul 21, 2004 7:11:03 PM | Permalink

Thanks for the comment, Milbarge. I haven't had it come up in an appeal of one of my own cases yet either. But I've seen multiple occasions when another lawyer at trial was trying to impeach a witness with his/her prior deposition testimony that consisted only of an "uh-huh" or an "uh-uh" — with the result that the witness was able to squirm off the hook with varying degrees of success.

Fortunately, I've never had the problem arise from one of my own prior examinations, because the habit of demanding clarification was drilled into me very early on in my career by the older lawyers who were teaching me the arts of our profession. But I've had to deal with the problem myself once at trial when I was relying on prior testimony elicited by someone else who'd been less careful; and luckily for me, the witness in that case backed down when I threatened to call as an impeachment witness the court reporter who'd recorded his "uh-huh" as an affirmative answer.

Of course, I've also seen a jury trial in which a witness had answered an unqualified and unmumbled "Yes" to this question in her deposition — "Did you smell gas at any time during the day before your house exploded?" — and then tried to "correct" her deposition transcript immediately before the trial to change the answer to "No." Wisely, my friend who was representing the local gas utility — and relying upon a contributory negligence defense (failing to call the utility after smelling the gas) — made the witness' attempt to change this deposition answer a key credibility issue during the trial. And most amazingly of all, perhaps, the witness in question was the wife of a prominent lawyer at another Houston law firm! Truth is stranger than fiction.

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