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Negative interrogatives and adversarial uptake: Building hostility in child custody examinations
Journal of Pragmatics 136 (2018) 39e53
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Negative interrogatives and adversarial uptake: Building hostility in child custody examinations Karin Aronsson Dep. of Child and Youth Studies, Stockholm University, SE 106 91 Stockholm, Sweden
a r t i c l e i n f o
a b s t r a c t
Article history: Received 4 June 2018 Received in revised form 6 August 2018 Accepted 9 August 2018
This study documents the adversarial role of negative interrogatives in courtroom talk. It involves a large set of audio-recordings of child custody proceedings. The focus is on sequences where different attorneys examined conflicting parents in two contexts: their own client versus the other side parent. Overwhelmingly, negative interrogatives were located, not in the first round of questions (same side), but during the cross-examination of the other side. The analytical focus is on parents' uptake to the attorneys' questions (in a collection of 289 negative interrogatives; from 156 examinations). All negative interrogatives, such as ‘So the children won't see their grandma?’, were cast in a polar format, projecting minimal yes-/noresponses. Yet, the parents' uptake featured expanded responses e defensive accounts and counter-blame e beyond minimal responses. Hostility was built up sequentially through the parents' uptake in the form of counter-blame and other re-allocations of blame. The blameaccounts were highlighted through extreme case formulations, rhetorical comments and other discursive devices. In this courtroom context, the parents were to answer, not to ask questions. Yet, they at times confronted the court, through metapragmatic questions, disrupting the interaction order of the courtroom. In numerous ways, negative interrogatives were related to adversarial features and escalation. © 2018 Elsevier B.V. All rights reserved.
Keywords: Negative interrogatives Adversarial formats Hostility Blame-account sequences Courtroom interaction
1. Negative interrogatives and hostility Research on courtroom talk has often neglected aggravated aspects of social interaction (for a related critique, see Archer, 2011; Culpeper, 2010; Tracy, 2008). This study contributes to work on adversarial talk in documenting a number of ways in which speakers in a courtroom context, orient to hostility in the negative interrogatives of the other side attorneys, but at large not to the questions by the same side attorney. It thereby extends work on negative interrogatives from news interviews and political life to another arena of public talk, courtroom talk. More specifically, it examines the interaction order (Goffman, 1983) of courtroom proceedings about child custody disputes, an authentic high-conflict and high stakes context where two parents struggle over who is to be the child's guardian. The social context is, per definition, marked by severe conflicts in that mediation has failed. The analytical focus of this paper is on aggravation aspects of attorneys' questions and on how hostility is built in social interaction.
E-mail address: [email protected]. https://doi.org/10.1016/j.pragma.2018.08.008 0378-2166/© 2018 Elsevier B.V. All rights reserved.
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Goffman (1967, 1970, 1971) has discussed ways of engaging in open or hidden attacks in social life. His work is replete with warfare metaphors that invoke fighting or hostile actions (e.g. ‘ritual affronts’ and ‘ripostes’). Goffman's ways of analyzing how to mitigate attacks or affront someone's face have become quite influential, above all through the work of Brown and Levinson (1987). On the whole, though, research has often concerned mitigation, rather than aggravation. In the legal arena, Archer (2011) and Culpeper (2010) have commented on this bias and on the need for more work related to aggravation and the causing of offence. Relatedly, Haugh (2015) has commented on the need to also study how participants engage in taking offence. In analyses of political discourse, Tracy (2008) has similarly argued for more work on ‘reasonable hostility’ and ways of expressing aggravated criticism. Moreover, as pointed out by Ehrlich and Sidnell (2006), work on courtroom discourse has often primarily focused on the coerciveness of question formats, not on the litigants' uptake. This paper examines a specific discursive format e the negative interrogative. This interrogative format epitomizes aggravated talk in that it can be seen to criticize or evaluate the interviewee's conduct or opinions. The negative interrogative involves propositions that evaluate the interviewee's conduct, or that of superiors, allies or friends in critical, negative or problematic terms…. This critical propositional content is embedded in the negative interrogative with a polarity that invites the interviewee to assent to the criticism, or to endorse criticism of the conduct of allies (Heritage, 2002: 1439) Ultimately, the negative interrogative is argumentative or challenging in that it is designed to highlight inconsistencies in the addressee's actions or prior responses (Heritage, 2002: 1439). In a paper on presidential debates, Clayman and Heritage (2002) have shown that negative interrogatives are situated in time, documenting a shift from a somewhat deferential style in broadcasted interviews in the 1950s toward a more adversarial style in the 1980s. Whereas negative interrogatives in a polar format were quite rare in talk to President Eisenhower, this somewhat coercive format was more than six times as common in journalists' ways of addressing President Reagan about thirty years later, in another type of media climate. Heritage (2002) has pointed out that the potentially hostile format of the negative interrogative is not something exclusive for news journalism. In any institutional context that involves asymmetrical questioning, negative interrogatives might per se build up toward more hostile environments in that they can be seen to hold the recipient of the question as accountable (Clayman and Heritage, 2002) for untoward events. Accountability is a key issue in any discussion of blame and blame-attacks on someone's persona (Buttny, 1990; Edwards, 1995), and “an account is an explanation offered to an accuser which aims to change the potentially pejorative meanings of action” (Buttny, 1990:219). In his analyses of news interviews, Heritage (2002) discusses hostility as an elusive phenomenon in that it is not associated with any single format or formal feature. Within proceedings, negative interrogatives similarly seem to constitute one of several formats that might play a role for moving in an aggravated direction during courtroom talk. For instance, in other contexts, extreme case formulations (Buttny, 1993; Edwards, 2000; Pomerantz, 1986) have been shown to play a role in increasing aggravation in sequences such as ‘Did you always…?’ or ‘Did you ever try to talk to her?’ (extreme formulations, italized). In their analyses of broadcasted press conferences, Clayman and Heritage (2002) also analyzed the role of directness, tilted questions and overt criticism as other ways of increasing hostility. As discussed by Heritage (2002), a news interview provides a virtual laboratory of question design. Courtroom talk constitutes an environment that is similarly known to be rich in hostile talk (e.g. Drew, 1992; Ingrids and Aronsson, 2014), and that constitutes something of a goldmine for exploring aggravation. This study contributes to work on questioning in institutional contexts (for reviews, see Freed and Ehrlich, 2010; Raymond, 2010). More specifically, it is related to a body of literature on questions in justice contexts (e.g. Cerovic, 2016; Tracy and Parks, 2012). In line with the participant perspective of conversation analysis, this paper primarily focuses on the role of negative interrogatives in courtroom talk, as reflected in the individual parent's uptake, particularly when interacting with the attorney of the other side, when responding to negative interrogatives like ‘You didn't inform the children's mother?’. Much like the comparative temporal design of Clayman and Heritage (2002), this paper thus draws on authentic data that can be seen to present something of a natural “experiment” where it is reasonable to expect more aggravated interaction in a distinct legal and temporal context (here: the cross-examination, that is, the examination by the opponent side attorney, that follows after examination by the same side attorney). In the courtroom, negative interrogatives were deployed by attorneys as conversational resources. Two research questions are examined in this study: (i) In what phase of the courtroom examinations do negative interrogatives tend to occur: in the direct examination by the same side attorneys or in the examination by the other side? (ii) What types of adversarial or hostile resources e if any e are deployed by the parents in their uptake to the attorneys of the other side?
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2. Data 2.1. Setting In Sweden, child custody proceedings constitute an institutional context that is per definition adversarial, in that only a few percent, the most severe of all post-separation conflicts end up in courtroom litigation about which parent is to be the child's caretaker. In a strictly formal sense, Swedish family law is not adversarial: the court's main task is to see to the ‘best interest of the child’. However, in the child custody data, the individual parents themselves recurrently refer to their counterpart as ‘her side’ or ‘his side’ when problematizing how the other parent defines the child's best interest. Similarly, the court representatives themselves (judges, attorneys) recurrently refer to the opposite side attorney as the attorney of ‘motparten’ (the counterpart). In many ways, the examination by the other side attorney can thus be seen as a type of cross-examination, even if it is not formally defined as such. 2.2. Data This study draws on a unique and large data set of audio-recorded courtroom proceedings, focusing on conversational patterns for how different parties testify about the child's best interest in courtroom family law examinations (for details, see n and Aronsson, 2018; Ingrids and Aronsson, 2014; Sjo € blom et al., 2018). Franze It is part of a nationwide data collection of audio-recordings of all courtroom examinations involving child custody proceedings during one month (in all of Sweden). In these disputes, two parents were examined first by their own side €rho €r) e by the opponent side. In total, this covers 156 examinations (78 attorneys and then e in the cross-examination (motfo parents in two divergent types of contexts: Father's attorney versus same side/other side parent; Mother's attorney versus same side/other side parent). Negative interrogatives were marked events that generally appeared during the crossexamination, that is, toward the final phase of each examination. In total, the analyses yielded a collection of 289 negative interrogatives. As can be seen, they are not very common in that they on average appear somewhat less than twice in each set of (156) interrogations. The analytical focus of this paper is on the parents' uptake to the potential hostility of negative interrogatives. The analytical units constitute sequences of at least two or more turns that include a negative interrogative in a polar format1 and the individual parent's subsequent uptake. In another paper, we have discussed, in some details, ways in which the parents deployed various nonverbal resources (intonation, stress, loudness, voice quality) in their reported speech and reported affects in courtroom storytelling, where nonverbal features were important conversational resources for indexing divergent stances in ongoing courtroom argumentation (Ingrids and Aronsson, 2014). For reasons of space, this paper is primarily focused on syntactic and pragmatic aspects of adversarial uptake to negative interrogatives. The question-answer extracts in this paper have been chosen so that they illustrate recurrent patterns in the data at large. For ethical reasons and for reasons of space, they are chosen so that they are legible without extensive contextual information. All names have been anonymized and the study has been approved by the Regional Ethics Committee in Stockholm, Sweden. 3. Location during the proceedings Each courtroom examination of the main protagonists (the mother versus the Father) tends to involve a large number of questions. However: an important aspect of the interaction order (Goffman, 1983) of courtroom questioning is that it is a highly asymmetrical affair, particularly in cross-examination contexts: an attorney asks questions and the litigant or witness is to respond (see also, Archer, 2011; Culpeper, 2010; Ehrlich and Sidnell, 2006). The litigant is not expected to pose questions to the court or to comment on the attorney's conduct of the examination. In the standard case, the judge first invites the same side attorney to present his or her questions, then the opponent side. In the present data, the negative interrogatives were generally built as polar Y/N-questions where an agreement in the form of a minimal response e yes or no e would be the expected response (for a review of question formats, see Table 1 Location of negative interrogatives (direct examination vs cross-examination). Questions directed to
Direct examination
Cross-examination by other side
Total number of negative interrogatives
Mother Father Total
22 25 47
114 128 242
136 153 289
1 This collection includes negative in a polar format that projects yes/no-responses, e.g. ‘You didn't turn up at the scheduled meeting’? Interrogatives in, for instance WH-formats, such as ‘Why didn't you turn up’? are not included in this collection (see also, Heritage, 2002).
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Stivers, 2010). In the data, negative interrogatives questions (neg-Q) were marked and relatively rare phenomena that only constitute a negligible number of all questions involved. Yet, they seem to play a role in regulating the degree of aggravation when the attorneys address the different sides in the courtroom. One aspect of this is that the temporal localization of the negative interrogatives is quite orderly in that they overwhelmingly appear during the crossexamination (Table 1). In line with prior work on the bureaucratic rationality of the courtroom (Archer, 2011; Drew, 1992; Ehrlich and Sidnell, 2006), the cross-examination phase is a more adversarial context. In our data, the negative interrogatives were accordingly located in the interrogation by the opponent side attorneys. This interrogative format thus appears relatively late during the proceedings, in the second phase, in a context where heat has already started to build up. It should be noted, though, that the differences between the two phases of interrogation are striking: the quantitative analysis shows that there are more than four times as many negative interrogatives in the cross-examination phase. These findings thus extend and validate prior work on the adversarial nature of negative interrogatives (Clayman and Heritage, 2002; Heritage, 2002), indicating that the negative interrogative is not just an adversarial resource in presidential debates and news media, but also in courtroom examinations. 4. The parents' uptake in blame-account sequences On a strictly formal level, negative interrogatives might appear as a type of “neutral” question. Yet, respondents might still orient to the implicit hostile packaging, as has been documented in broadcasted news interviews (Clayman and Heritage, 2002; Heritage, 2002). In the following, I will analyze how hostility is built in situ through courtroom documentation of a number of examples that illustrate the parents' uptake to negative interrogatives in the data at large. In the courtroom, the litigating parents did not just respond to negative interrogatives through affirmative (yes/no-) responses. Instead, they recurrently oriented to the potential hostility of the questions in that they would build defensive social accounts. In most instances, the negative interrogatives thus elicited rebuttals from the testifying parent: either through denials of the blameworthiness of target events or phenomena or through social accounts (Buttny, 1993), that is, explanations for why the ascribed actions were less blameworthy or in some cases even justified. In yet other cases, the blame was re-allocated (e.g. to the ex-partner/school/social welfare authorities), that is, the litigants engaged in various types of counter-blame. Below, the blame-implicative impact of negative interrogatives is analyzed through litigants' uptake along a continuum of aggravated or adversarial aspects of courtroom talk and escalation during the proceedings: defensive accounts (ex. 1e2); counter-blame (ex. 3e9), and lastly adversarial talk (ex. 9e13), where the litigants actually challenge or confront the attorney or the court (see Fig. 1).
Fig. 1. Parents' uptake to negative interrogatives.
This figure represents something of a continuum of aggravated or escalated moves. The three categories are, however, not mutually exclusive. On an indirect level, all three types of uptake involve defensive features in that the participant might indirectly be seen to defend his/her own persona through re-allocating blame. In the courtroom data, counter-blame responses generally concerned the other party (Ex. 3e8 below). In less common cases, they also involve confrontations or challenges, directed at the opponent's attorney or the court at large (Ex. 9e13), a type of confrontational move that can of course also be seen as a special case of counter-blame. Challenges of the court at times escalated (Drew and Walker, 2009) quite dramatically, as when one litigant actually carried through a walk-out, leaving the courtroom as a protest toward the end of the cross-examination.
4.1. Defensive uptake (extracts 1e2) The attorney's negative interrogatives were formulated as polar yes/no-questions, calling for a single word response. Yet, most parents oriented to the blame-implicative nature of the negative interrogatives and provided some type of defensive account. The extracts below reflect the data at large, in that the negative interrogatives appeared during the crossexamination phase, a phase of the proceedings tends to involve substantial hostility. First, even the saving face (Goffman, 1967) of defensive accounts e as in excuses or justification eactually reflect the parents' orientation to the potential
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hostility or blame of negative interrogatives in that they recurrently chose to produce an account, to these polar questions where a minimal response (yes/no) might have served as a sufficient response.
2
Notably, none of these two mothers merely responded ‘yes’ in a single word format. As is typical in these data, they instead provided defensive accounts, orienting to the blame-implicative content of the polar question of the fathers' attorneys. In the first extract (ex. 1), M provides a defensive explanation in that she admits that the children wanted to stay for a longer time with their father, but that this only held true many years ago. She is thus justified in her position (of refusing him access to the children; on justifications, see Buttny, 1993; Scott and Lyman, 1968). In the next two cases, the mothers can, be seen to provide accounts in the form of excuses (Buttny, 1993; Scott and Lyman, 1968) for failing to get in touch with the family bureau, and for not getting in touch with the school. On another note, one of these two cases (ex. 2) features the Swedish epistemic particle ‘ju’ (Ex. 2: lines 3e4)3 which can be seen to highlight the parent's appeal to what can be seen as jointly taken for granted. It can often roughly be translated as ‘sure’, ‘indeed’ or ‘you know’. 4.2. Counter-blame: litigant's explicit blaming of others (extracts 3e8) The litigating two parents have to present and defend two contrasting and partly incompatible versions (Buttny, 1990; Drew, 1992; Edwards, 1995) of target descriptions of key events or phenomena. On an implicit level, many parents hint or suggest that the other party's narrative version is not correct. However, this is often accomplished through counter-narratives n and Aronsson, 2018; Ingrids and Aronsson, 2014). Even when there is no (see also, Buttny, 1990, 1993; Edwards, 1995; Franze overt hostility, most courtroom examinations thus do take place in a context of mutual blame and complaints, where each party has to tell the most compelling version. In the data, there are however also a number of cases where the parents criticize the other party explicitly. Some parents responded in more aggravated or hostile ways than others in that they actually spelled out who was to blame, explicitly reallocating blame to the more blameworthy party (the other parent). In many cases, as in the next two extracts, the negative interrogatives of attorneys of the other side were embellished or upgraded in that they were designed in the form of rhetorical or ironic questions.
2 The first number denotes the number in the corpus and the letter indicates parent (M or F). For instance, ‘M’ indicates ‘mother’, but it also refers to a fictive surname, e.g. Maria or Marianne or ‘Fredrik’/Father. In court, parents are normally addressed and referred to with their surnames. The next two numbers denote location in the proceedings (in this specific case, the neg-Q appears when 66% of all words in the proceedings have been spoken). As can be seen, most negative interrogatives occur in the final phase of the cross-examination. The translations from Swedish to English are kept as close as possible to the original audio-recordings in Swedish (Appendix A). 3 €l or visst (‘sure’ or ‘right’) as in Du In Swedish, tag questions differ from the English syntax. They are generally expressed through adverbials, e.g. va €l/visst ? (‘you asked him right/sure/?’). Constructions with postponed constructions like eller hur? (literally: or how?)’ tend to be less frågade honom va common.
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In both these cases, the parents respond to the opponent side attorney's (somewhat ironic) rhetorical question by presenting counter-blame. In their uptake, it is instead the attorney's own client who is to blame: for not ‘wanting contact’ (ex. 3) or for not fixing things (ex. 4). In both cases, there is what Edwards (1995) called rhetorical symmetry in that the speaker himself/herself was cast as blameworthy in the first place, but the other party is then to be blamed (on matching criticism, see also Buttny, 1990:233). In extract 4, the mother combines a defensive and blame re-allocation approach when she states that “No (.) not just right now when he's like this (.) he has to arrange his life”. As the mother in the first extract, she invokes a temporal dimension as an important way of building up a defensive account. She is not against spending more time or having more contact with their dad”, but it should be ‘not right now’. Yet, we do not know what ‘right now’ might mean, and the father's attorney then continues to probe this issue (not included here). In any case, the mother's account is designed as counter-blame in that her ex-partner himself is really the one to blame for the children not seeing him in that he has not arranged his life (lines 3e4). During the cross-examination in Ex. 4, the discussion escalates and builds up into more aggravated forms of blame over time, as when this mother states in a very explicit way that ‘he's got worse’ (line 7). At this point, the opponent attorney formulates another rhetorical and somewhat ironic question: ‘But you haven't ju had kind of so much contact now (.) he cannot have become so much worse? (extreme case formulation, ECF, in analyst's italics; lines 8e9), and M responds with another extreme case formulation about how he is worse in that he has ‘never spoken such foul words to the children’ (line 10; italics added). Again, there is thus rhetorical symmetry in terms of formats in that the same type of discursive device (ECF) is deployed by the attorney and the parent (M) for upgrading blame. On another note, the two respondents' counter-blame can be seen as evidence for how they see rhetorical questions as tough or challenging (Cerovi c, 2016; Tracy and Parks, 2012). Below is another illustration of counter-blame:
In this fragment, the question of the father's attorney is designed as a rhetorical question or an innuendo. The mother's uptake is apparently oriented to this ironic design. In any case, her uptake assumes the format of a somewhat hostile counterblame account: he is the one who is made accountable in that he is to ask the children about school matters. On an implicit level, she thus also withholds her own response. Such a non-response can be seen as a confrontation of the court in terms of courtroom procedures where the court asks questions and where witnesses are expected to respond (for related confrontations, see also extracts 9e11, below). It can be noted that she could have responded in a less combative or confrontational way (for instance through admitting that the father has a right to be informed, combined with an excuse of some kind).
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More or less routinely, things escalate and the heat builds up over time. Below are two extracts from another examination (where both interrogatives were located toward the end of the same proceedings, when 77% and 89% of the examination was over).
On line 1 (Ex. 6), the attorney's initial question can be seen as somewhat confrontational in that it invokes the children's potential fear of F's alleged ‘screaming’, something that has been discussed earlier during the proceedings. Within the implicit interaction order of the court, the attorneys (or the judge) are the ones to ask questions, and the litigants/parents are not expected to spell out how the examination is to be organized. In his uptake, the father can therefore be seen to challenge M's attorney e and courtroom order e in suggesting that the question should instead be directed to the children themselves (line 2; “You should ask them“). His proposal involves a breach of the social order of courtroom interrogations. Metapragmatic comments, like this one constitute marked events (see also, extracts 9e11 further below). Notably, M's attorney does not comment on who is to be examined, but instead just points out that according to the mother's testimony they (the children) have actually said that they are fearful (line 3). In response to this blame-implicative statement, the father designs a response that can be seen as a defensive counterblame, targeted at M's credibility (lines 4e6). In brief, she does not tell the truth: she merely says what supports her case. The social action of his response is quite complex. Negative interrogatives can partly be seen as rhetorical questions in that they syntactically assume a question format. Yet, they are rhetorically designed to state opinions, complaints or other assertions about how someone is at fault in some way (Heritage, 2002). In this extract, the father can similarly be seen to formulate something of a rhetorical comment in that these parents know that in court the children themselves are not heard by the attorneys. If at all, children are heard by social workers, but then before they prepare their reports to the court. What can also be seen (lines 4e6) is that F's response builds up into an innuendo that involves a redistribution of accountability in that M is cast as someone who has misinformed the court. F does not openly call her a liar, but within the overall frame of the dispute, this is what he means. It is for the court to decide who is to witness in court, not for the witnesses themselves (as father tries to do). He can thus be seen to simultaneously challenge the attorney and the court. Somewhat later during the same interrogation (ex. 7), M's attorney now poses another negative interrogative to F about whether what M says is not correct. In his somewhat heated uptake, on lines 6e7, the same father claims that everything M comes up with is just a case of ‘free confabulation’: she actually ‘knows nothing about it at all’ (italics added for ECF). It can be noted that his allegations of her blameworthiness are thus embedded in a number of extreme case formulations, that is, a type of conversational resource that is recurrently deployed in argumentative or adversarial contexts (Edwards, 2000; Pomerantz, 1986). As in most other cases in the courtroom data, the heat seems to gradually build up during the final phase of the crossexamination.
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In the cross-examination, the attorneys are at large more prone to deploy somewhat hostile formats, like negative interrogatives (cf. Table 1, above), and ironic or rhetorical question formats (extracts 3,4, 5, 8, 9 and 13). In the next extract, the attorneys' somewhat ironic negative interrogative leads up to a defensive social account in the form of counter-blame. As in several other cases of blame-ascription, this attorney packages a negative interrogative in a somewhat ironic rhetorical format (lines 1e2). The blame-implicative ironic or sarcastic proposition is unequivocal in that anyone can see that it is difficult e or even impossiblee to collaborate without actually talking to each other. In any case, the father (line 3) presents an account that attends to the attorney's innuendos, reallocating the blame to M, the most blameworthy party in his version of events.
In his discussion of hostility in media contexts, Heritage (2002) commented on the elusiveness of hostility. In the courtroom context, part of the elusiveness of courtroom hostility has to do with the ways in which the litigants recurrently deployed an assortment of conversational resources as ways of building up hostile resistance to the negative interrogatives by the other side. There was more than one type of verbal resource for engaging in adversarial talk. In the courtroom, rhetorical formats constitute one of many ways of building hostility. As noted, extreme case formulations (e.g., ex. 4, 7, 9 and 12) constitute another format that was routinely deployed by both attorneys and litigants. 4.3. Hostility and parents' challenging the court (extracts 9e13) Another type of adversarial resource involves metapragmatic comments. The attorneys and judges recurrently commented on the speaking rights of different parties, disciplining parties who spoke out of turn or who engaged in “argumentation” (instead of simply responding to attorneys' questions). The prominence of metadiscourse (Culpeper, 2010) is not surprising in view of the interaction order of the courtroom where attorneys and others regularly discipline witnesses who do not respond or who talk out of place. What is newsworthy in the data is that the witnesses themselves, the parents, at times talked about courtroom talk, commenting on the courtroom conversations (see also, ex. 6). In some cases, the parent would challenge or violate courtroom order through not responding at all or through explicitly withholding information (Ex. 9).
In this episode, M refuses to respond to a question by the opponent attorney (line 2). In the courtroom context, parents are indeed expected to provide responses to the attorneys' questions. This mother thus challenges the social order of the courtroom by explicitly withholding information. Moreover, she actually holds the attorney accountable for explaining why she is to provide the required information (lines 2e3), as she sees “no reason for why” to respond (italics added to her ECF) about what she evidently sees as private business. In quite a confrontational way, the opponent side attorney, not the litigant, is thus held accountable by this parent. And M is actually backed up her own attorney (line 4) who also questions FA's line of questioning (which concerned routine questions about child care arrangements). It can be noted though that the judge did not intervene. In another case, a parent has just filed a complaint at her ex-partner about an incident where he reportedly did not listen to their youngest child's wish to leave the car during a (highway) trip. The father's attorney can then be seen to undermine the alleged blameworthiness of F's actions through a question to M about the practical aspect of this unhappy incident. In her response to the opponent side version, the mother makes a meta comment about F's storytelling in court e “Yeah ok then he should say so” e implying that if this had been the case, he should indeed have told the court. Engaging in rhetorical symmetry, the mother can then be seen to proceed in formulating something that could be seen as another negative
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interrogative, directed to F's attorney “but isn't it odd that one-” (lines 3e4). At this point, the attorney points out that it is “not F, who is to be heard now” (line 5), invoking the interaction order of courtroom. Thereby, FA can be seen to orient to the somewhat confrontational nature of M's meta comment on who is to speak, as well as her negative interrogative, directed to the court. She does not merely defend her own narrative. She also calls into question F's capacity to tell his own version. In any case, F's attorney makes a metapragmatic comment, spelling out the overall norms for the social order of courtroom questioning. In spelling out the interaction order of the courtroom (line 5), F's attorney can be seen to criticize M for (disrespectfully) not responding to his question and for disrupting courtroom order, in asking questions of her own. Again, the conflict between FA and M can be seen to escalate. In the courtroom data at large, judge interventions are often restricted to demands for a few clarifications during the proceedings (e.g. ‘did you move in March or April’?). Other interventions by the judge tend to appear during the very last phase of the examination, and then often in the context of parents' faux-pas moves, as in the next case where the judge spells out the interaction order, protesting against the parent's challenging of the attorney:
The uptake of this father is rather confrontational in that he criticizes the attorney (lines 3e5). Moreover, he challenges the interaction order of the court, in asking MA a question about what the attorney thinks (line 8). In the following turn, the attorney orients to F's faux pas (line 9), spelling out that he is just there to pose questions (not to discuss opinions). Ultimately the judge actually intervenes, spelling out the social order of the courtroom: ‘Yes (.) >it's not a matter of what the attorney thinks but what you think<; lines 10e11). Both M's attorney and the judge thus orient to his breach of courtroom order (where the attorney is to pose questions, not the litigant). In legal examination contexts, it is normally attorneys or policemen who ask questions, not the clients or defendants (see also Cerovi c, 2016).
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In the next extract, another parent similarly poses (quite a confrontational) question to the attorney of the other side:
Here M's attorney challenges F, asking him if he has ‘never ’ brought his children on a business trip (line 1; ECF in analyst's italics). The father similarly deploys an extreme case formulation, responding in a somewhat heated way: ‘Never a pure business trip (.) no I've not done that’. Again, it can be seen that there is rhetorical symmetry in that both the attorney and the litigant deploy the same type of discursive device (ECF). The father then proceeds, producing a confrontational statement, formatted as an innuendo “(.) so that- I don't know >from where did you get that?<” (line 4). Another interlocutor might have reacted with some hostility to such a challenge. But as in many similar cases, the attorney merely responds to a parent's verbal attack through a minimal acknowledgment: here “right” (Sw: jaha) and then moves on to other matters. This is of course partly an issue, related to accountability: it is the parent who is accountable to the court, not the other way around. When a parent poses questions to the attorney s/he violates the interaction order of the courtroom. In several cases, as in the last episode, the parents' confrontations of the court are not just about the social order, but they actually involve rather implicit or explicit challenges of the court's competence. In the somewhat heated atmosphere of the cross-examination in several cases (especially in its final phase), the parents challenge the attorney or the court, in that they ask a question of their own, at times an ironic or even sarcastic question, as in (ex. 13):
Several negative interrogatives have a somewhat ironic twist. In this case, MA's initial question has the form of a rhetorical question, a neatly packaged criticism of F, rather than a genuine question for information. The respondent, the father might have responded in a more compliant way, by for instance, producing a defensive account ‘but then I might miss the train’. Instead, his response is designed in a partly symmetrical way in that he e like the attorney e deploys a somewhat ironic or even sarcastic format (line 4): “by missing the train, you mean?”, formulating an ironic rhetorical question of his own. Again, there is thus rhetorical symmetry (Edwards, 1995) in the way that hostility is built up, in that both parties deploy irony. Notably though, in this courtroom context, such a rhetorical question can be seen to constitute a type of irony that would ordinarily belong to the attorneys' toolkit for putting pressure on a litigant, not the other way around. 5. Concluding discussion The courtroom is an arena where social interaction takes place within an overall context of blame (Ingrids and Aronsson, 2014; Drew, 1992). Prior research on contrasting narratives in legal and couple-therapy contexts has documented what has been called a blame machinery (Ingrids and Aronsson, 2014; see also Buttny, 1996; Edwards, 1995) where blame tends to generate counter-blame. In the present cross-examinations, such recursive dynamics can also be seen in how the parents' defensive and hostile uptake is related to adversarial features in the attorneys' negative interrogatives. The child custody proceedings appear as a setting for heated arguments. Yet, the heat is carefully choreographed. During the direct examinations of their own clients, the attorneys tend to avoid innuendos and (sarcastic) rhetorical questions, whereas negative interrogatives and other aggravated moves tend to be located in the cross-examination phase, often toward the end of this phase, where they surface as adversarial manifestations of hostility that is built up cumulatively in social interaction. In the courtroom data set, negative interrogatives constitute one of many devices, along with (other potentially) ironic formats, deployed by attorneys in moving examinations into a more adversarial direction. The parents' uptake similarly reveals a range of ways where they can be seen to orient to the hostile or blame-implicative features of negative
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interrogatives. The findings do not indicate that one type of conversational device automatically leads to one distinct type of conversational format in the recipient's uptake. However, there are a few relatively neat cases of rhetorical symmetry (Edwards, 1995), for instance, in how both parties deploy irony or extreme case formulations. The coordinated actions of attorneys and respondents are instead mutually reflexive in more subtle and complex ways. If anything, the findings show that over time during courtroom interaction, the heat increases through an assortment of aggravated moves e including negative interrogatives, irony, rhetorical comments, metapragmatic questions and extreme case formulations. Another complication is that both attorney talk and the parents' subsequent uptake at times contains several adversarial features, within one single turn. However, gradually, adversarial features build up into more and more mutual blame and to greater heat and escalation. What is striking is that, in spite of the complexity of the blame machinery, the litigating parents, in many ways, seem to orient to the potentially adversarial nature of negative interrogatives. First, one type of evidence is the sequential location of negative interrogatives in that they overwhelmingly appear during the cross-examination, rather than during the initial phase of the proceedings (Table 1). The negative interrogatives are thus linked to hostility through their very distribution, in that they overwhelmingly appear during the cross-examination. Second, analyses of the uptake show that the participants themselves recurrently orient to the blame-implicative nature of negative interrogatives in courtroom talk. The prototypical negative interrogative is cast in a polar format, projecting yes/noresponses (Raymond, 2010; Stivers, 2010). Yet, in most cases, the litigants provided defensive accounts (as exemplified in transcripts 1e13), orienting to the blame implicative nature of negative interrogatives. The participants recurrently responded through social accounts (Buttny, 1990; Edwards, 1995). Many of these accounts involve novel blame ascriptions, where blame is re-allocated through more or less hostile attacks, directed to the other parent or to professionals in public institutions, such as the child psychiatry clinic or social welfare office (extracts 3e8). As discussed by Clayman and Heritage (2002), accountability is an important aspect of the potential hostility of negative interrogatives. The blame-account sequences were recurrently upgraded through diverse discursive devices, such as ironic or rhetorical moves, extreme case formulations or meta-communication. Third, some of the parents' escalated uptake involved confrontational moves that could be seen as ways of challenging the court (extracts 9e13). Part of the heated or hostile argumentation was conveyed through the parents' ironic comments. Moreover, the parents engaged in metapragmatic suggestions and questions about the courtroom procedures. When the parents commented on who was to ask questions, they could be seen to breach the social order of the court in casting the other side attorney, and thus the court, as the accountable party who was to respond to the parent's questions and suggestions (and not the other way around). Such moves were treated by the court as confrontational in that they could be seen to disrupt the social interaction order of the courtroom. The overall findings of this study can thus be seen to validate and extend prior work on negative interrogatives as parts of aggravated moves in institutional contexts (Clayman and Heritage, 2002; Edwards, 1995; Heritage, 2002). In brief, the analyses document a number of ways in which parents and attorneys could be seen to co-construe hostility in courtroom interaction, partly through negative interrogatives. As has been pointed out by Heritage (2002), hostility is an elusive phenomenon. However, the courtroom is something of a laboratory for adversarial formats. In a number of ways, the findings testify to the adversarial nature of negative interrogatives: they are primarily located in cross-examination settings, they generate accounts, rather than the projected minimal yes/no-responses, and they recurrently appear in the context of counter-blame, together with an array of other devices, such as extreme case formulations, (ironic) rhetorical moves, and metacommunication that are all deployed for building up confrontations and hostility. Moreover, the findings contribute to work on adversarial communication in courtroom contexts (cf. Archer, 2011; Culpeper, 2010; Tracy and Parks, 2012) in demonstrating the role of negative interrogatives and rhetorical questions for building hostility and escalation. Conflicts of interest None Public data It is impossible to share the data corpus for ethical reasons; as the data are highly sensitive (audios of courtroom talk about intimate matters in child custody proceedings). Acknowledgement Funding for this project was received from Forte: The Swedish Research Council for Health, Working Life and Welfare [grant 2014-1554, PI: Aronsson]. Earlier versions have been presented at ALAPP, Milan and at meetings with CLIP, Uppsala n, Bjo €rn Sjo € blom and other members of the University. Thanks are also due to two anonymous reviewers and to Anna Franze Discourse Group, Stockholm University.
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Appendix. Swedish originals
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References Archer, D., 2011. Cross-examining lawyers, facework and the adversarial courtroom. J. Pragmat. 43, 3216e3230. Brown, P., Levinson, S.C., 1987. Politeness: Some Universals in Language Usage. Cambridge University Press, Cambridge. Buttny, R., 1990. Blame-account sequences in therapy: the negotiation of relational meanings. Semiotica 78 (3/4), 219e247. Buttny, R., 1993. Social Accountability in Communication. Sage, London. Buttny, R., 1996. Clients' and therapist's joint construction of the clients' problems. Res. Lang. Soc. Interact. 29, 125e153. Cerovi c, M., 2016. When suspects ask questions: rhetorical questions as a challenging device. J. Pragmat. 105, 18e38. Clayman, S.E., Heritage, J., 2002. Questioning presidents: journalistic deference and adversarialness in the press conferences of U.S. presidents Eisenhower and Reagan. J. Commun. 52, 749e775. Culpeper, J., 2010. Conventionalised impoliteness formulae. J. Pragmat. 3232e3245. Drew, P., 1992. Contested evidence in courtroom cross-examination: the case of a trial for rape. In: Drew, P., Heritage, J. (Eds.), Talk at Work: Interaction in Institutional Settings. Cambridge University Press, Cambridge, England, pp. 470e520. Drew, P., Walker, T., 2009. Going too far: complaining, escalating and disaffiliation. J. Pragmat. 41, 2400e2414. Edwards, D., 1995. Two to tango: script formulations, dispositions and rhetorical symmetry in relationship troubles talk. Res. Lang. Soc. Interact. 28 (4), 319e350. Edwards, D., 2000. Extreme case formulations: softeners, investment, and doing nonliteral. Res. Lang. Soc. Interact. 33, 347e373. Ehrlich, S., Sidnell, J., 2006. “I think that's not an assumption you ought to make”: challenging presuppositions in inquiry testimony. Lang. Soc. 35, 655e676. n, A., Aronsson, K., 2018. ‘Then she got a spanking’: social accountability and narrative versions in social workers’ courtroom testimonies. Discourse Franze Stud. 20 (5), 1e21. https://doi.org/10.1177/1461445618760605 (online). Freed, A.F., Ehrlich, S., 2010. “Why Do You Ask?”: the Function of Questions in Institutional Discourse. Oxford University Press, Oxford. Goffman, E., 1967. Interaction Ritual: Essays on Face-to-face Behavior. Pantheon Books, New York. Goffman, E., 1970. Strategic Interaction. Basil Blackwell, Oxford, England. Goffman, E., 1971. Relationships in Public: Microstudies of the Public Order. Harper and Row, New York. Goffman, E., 1983. The interaction order. Am. Socio. Rev. 48, 1e17. Haugh, M., 2015. Impoliteness and taking offence in initial interactions. J. Pragmat. 86, 36e42. Heritage, J., 2002. The limits of questioning: negative interrogatives and hostile question content. J. Pragmat. 34, 1427e1446. Ingrids, H., Aronsson, K., 2014. Reported speech and reported affect in child custody disputes. Res. Lang. Soc. Interact. 47, 69e88. Pomerantz, A., 1986. Extreme case formulations: a way of legitimizing claims. Hum. Stud. 9, 219e229 (adversarial stances, p.220). Raymond, G., 2010. Grammar and social relations: alternative forms of yes/no-type initiating actions in health visitor interactions. In: Freed, A.,F., Ehrlich, S. (Eds.), Why Do You Ask? the Function of Questions in Institutional Discourse. Oxford University Press, Oxford, pp. 87e108. Scott, M.B., Lyman, S.M., 1968. Accounts. Am. Socio. Rev. 33, 46e62. €blom, B., Franze n, A., Aronsson, K., 2018. Contested connectedness in child custody narratives: mobile phones and children’s rights and responsibilities. Sjo New Media Soc. https://doi.org/10.1177/1461444818761015 (online). Stivers, T., 2010. An overview of the questioneresponse system in American English conversation. J. Pragmat. 42, 2772e2781. Tracy, K., 2008. “Reasonably hostility”: situation-appropriate face-attack. J. Politeness Res. 4, 169e191. Tracy, K., Parks, R.M., 2012. “Tough questioning” as enactment of ideology in judicial conduct: marriage law appeals in seven US courts. Int. J. Speech Lang. Law 19 (1), 1e25. €ping University. Her research interests concern Karin Aronsson, professor emeritus at Stockholm University formerly also worked as professor at Linko language and social action in institutional contexts, like courtrooms, classrooms and pediatric settings. Much of her work is focused on asymmetries and multiparty alignments in social interaction. She serves on several editorial boards: Applied Linguistics, Journal of Language and Social Psychology, Research on Children and Social Interaction and Text & Talk.
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Journal of Pragmatics journal homepage: www.elsevier.com/locate/pragma
Negative interrogatives and adversarial uptake: Building hostility in child custody examinations Karin Aronsson Dep. of Child and Youth Studies, Stockholm University, SE 106 91 Stockholm, Sweden
a r t i c l e i n f o
a b s t r a c t
Article history: Received 4 June 2018 Received in revised form 6 August 2018 Accepted 9 August 2018
This study documents the adversarial role of negative interrogatives in courtroom talk. It involves a large set of audio-recordings of child custody proceedings. The focus is on sequences where different attorneys examined conflicting parents in two contexts: their own client versus the other side parent. Overwhelmingly, negative interrogatives were located, not in the first round of questions (same side), but during the cross-examination of the other side. The analytical focus is on parents' uptake to the attorneys' questions (in a collection of 289 negative interrogatives; from 156 examinations). All negative interrogatives, such as ‘So the children won't see their grandma?’, were cast in a polar format, projecting minimal yes-/noresponses. Yet, the parents' uptake featured expanded responses e defensive accounts and counter-blame e beyond minimal responses. Hostility was built up sequentially through the parents' uptake in the form of counter-blame and other re-allocations of blame. The blameaccounts were highlighted through extreme case formulations, rhetorical comments and other discursive devices. In this courtroom context, the parents were to answer, not to ask questions. Yet, they at times confronted the court, through metapragmatic questions, disrupting the interaction order of the courtroom. In numerous ways, negative interrogatives were related to adversarial features and escalation. © 2018 Elsevier B.V. All rights reserved.
Keywords: Negative interrogatives Adversarial formats Hostility Blame-account sequences Courtroom interaction
1. Negative interrogatives and hostility Research on courtroom talk has often neglected aggravated aspects of social interaction (for a related critique, see Archer, 2011; Culpeper, 2010; Tracy, 2008). This study contributes to work on adversarial talk in documenting a number of ways in which speakers in a courtroom context, orient to hostility in the negative interrogatives of the other side attorneys, but at large not to the questions by the same side attorney. It thereby extends work on negative interrogatives from news interviews and political life to another arena of public talk, courtroom talk. More specifically, it examines the interaction order (Goffman, 1983) of courtroom proceedings about child custody disputes, an authentic high-conflict and high stakes context where two parents struggle over who is to be the child's guardian. The social context is, per definition, marked by severe conflicts in that mediation has failed. The analytical focus of this paper is on aggravation aspects of attorneys' questions and on how hostility is built in social interaction.
E-mail address: [email protected]. https://doi.org/10.1016/j.pragma.2018.08.008 0378-2166/© 2018 Elsevier B.V. All rights reserved.
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Goffman (1967, 1970, 1971) has discussed ways of engaging in open or hidden attacks in social life. His work is replete with warfare metaphors that invoke fighting or hostile actions (e.g. ‘ritual affronts’ and ‘ripostes’). Goffman's ways of analyzing how to mitigate attacks or affront someone's face have become quite influential, above all through the work of Brown and Levinson (1987). On the whole, though, research has often concerned mitigation, rather than aggravation. In the legal arena, Archer (2011) and Culpeper (2010) have commented on this bias and on the need for more work related to aggravation and the causing of offence. Relatedly, Haugh (2015) has commented on the need to also study how participants engage in taking offence. In analyses of political discourse, Tracy (2008) has similarly argued for more work on ‘reasonable hostility’ and ways of expressing aggravated criticism. Moreover, as pointed out by Ehrlich and Sidnell (2006), work on courtroom discourse has often primarily focused on the coerciveness of question formats, not on the litigants' uptake. This paper examines a specific discursive format e the negative interrogative. This interrogative format epitomizes aggravated talk in that it can be seen to criticize or evaluate the interviewee's conduct or opinions. The negative interrogative involves propositions that evaluate the interviewee's conduct, or that of superiors, allies or friends in critical, negative or problematic terms…. This critical propositional content is embedded in the negative interrogative with a polarity that invites the interviewee to assent to the criticism, or to endorse criticism of the conduct of allies (Heritage, 2002: 1439) Ultimately, the negative interrogative is argumentative or challenging in that it is designed to highlight inconsistencies in the addressee's actions or prior responses (Heritage, 2002: 1439). In a paper on presidential debates, Clayman and Heritage (2002) have shown that negative interrogatives are situated in time, documenting a shift from a somewhat deferential style in broadcasted interviews in the 1950s toward a more adversarial style in the 1980s. Whereas negative interrogatives in a polar format were quite rare in talk to President Eisenhower, this somewhat coercive format was more than six times as common in journalists' ways of addressing President Reagan about thirty years later, in another type of media climate. Heritage (2002) has pointed out that the potentially hostile format of the negative interrogative is not something exclusive for news journalism. In any institutional context that involves asymmetrical questioning, negative interrogatives might per se build up toward more hostile environments in that they can be seen to hold the recipient of the question as accountable (Clayman and Heritage, 2002) for untoward events. Accountability is a key issue in any discussion of blame and blame-attacks on someone's persona (Buttny, 1990; Edwards, 1995), and “an account is an explanation offered to an accuser which aims to change the potentially pejorative meanings of action” (Buttny, 1990:219). In his analyses of news interviews, Heritage (2002) discusses hostility as an elusive phenomenon in that it is not associated with any single format or formal feature. Within proceedings, negative interrogatives similarly seem to constitute one of several formats that might play a role for moving in an aggravated direction during courtroom talk. For instance, in other contexts, extreme case formulations (Buttny, 1993; Edwards, 2000; Pomerantz, 1986) have been shown to play a role in increasing aggravation in sequences such as ‘Did you always…?’ or ‘Did you ever try to talk to her?’ (extreme formulations, italized). In their analyses of broadcasted press conferences, Clayman and Heritage (2002) also analyzed the role of directness, tilted questions and overt criticism as other ways of increasing hostility. As discussed by Heritage (2002), a news interview provides a virtual laboratory of question design. Courtroom talk constitutes an environment that is similarly known to be rich in hostile talk (e.g. Drew, 1992; Ingrids and Aronsson, 2014), and that constitutes something of a goldmine for exploring aggravation. This study contributes to work on questioning in institutional contexts (for reviews, see Freed and Ehrlich, 2010; Raymond, 2010). More specifically, it is related to a body of literature on questions in justice contexts (e.g. Cerovic, 2016; Tracy and Parks, 2012). In line with the participant perspective of conversation analysis, this paper primarily focuses on the role of negative interrogatives in courtroom talk, as reflected in the individual parent's uptake, particularly when interacting with the attorney of the other side, when responding to negative interrogatives like ‘You didn't inform the children's mother?’. Much like the comparative temporal design of Clayman and Heritage (2002), this paper thus draws on authentic data that can be seen to present something of a natural “experiment” where it is reasonable to expect more aggravated interaction in a distinct legal and temporal context (here: the cross-examination, that is, the examination by the opponent side attorney, that follows after examination by the same side attorney). In the courtroom, negative interrogatives were deployed by attorneys as conversational resources. Two research questions are examined in this study: (i) In what phase of the courtroom examinations do negative interrogatives tend to occur: in the direct examination by the same side attorneys or in the examination by the other side? (ii) What types of adversarial or hostile resources e if any e are deployed by the parents in their uptake to the attorneys of the other side?
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2. Data 2.1. Setting In Sweden, child custody proceedings constitute an institutional context that is per definition adversarial, in that only a few percent, the most severe of all post-separation conflicts end up in courtroom litigation about which parent is to be the child's caretaker. In a strictly formal sense, Swedish family law is not adversarial: the court's main task is to see to the ‘best interest of the child’. However, in the child custody data, the individual parents themselves recurrently refer to their counterpart as ‘her side’ or ‘his side’ when problematizing how the other parent defines the child's best interest. Similarly, the court representatives themselves (judges, attorneys) recurrently refer to the opposite side attorney as the attorney of ‘motparten’ (the counterpart). In many ways, the examination by the other side attorney can thus be seen as a type of cross-examination, even if it is not formally defined as such. 2.2. Data This study draws on a unique and large data set of audio-recorded courtroom proceedings, focusing on conversational patterns for how different parties testify about the child's best interest in courtroom family law examinations (for details, see n and Aronsson, 2018; Ingrids and Aronsson, 2014; Sjo € blom et al., 2018). Franze It is part of a nationwide data collection of audio-recordings of all courtroom examinations involving child custody proceedings during one month (in all of Sweden). In these disputes, two parents were examined first by their own side €rho €r) e by the opponent side. In total, this covers 156 examinations (78 attorneys and then e in the cross-examination (motfo parents in two divergent types of contexts: Father's attorney versus same side/other side parent; Mother's attorney versus same side/other side parent). Negative interrogatives were marked events that generally appeared during the crossexamination, that is, toward the final phase of each examination. In total, the analyses yielded a collection of 289 negative interrogatives. As can be seen, they are not very common in that they on average appear somewhat less than twice in each set of (156) interrogations. The analytical focus of this paper is on the parents' uptake to the potential hostility of negative interrogatives. The analytical units constitute sequences of at least two or more turns that include a negative interrogative in a polar format1 and the individual parent's subsequent uptake. In another paper, we have discussed, in some details, ways in which the parents deployed various nonverbal resources (intonation, stress, loudness, voice quality) in their reported speech and reported affects in courtroom storytelling, where nonverbal features were important conversational resources for indexing divergent stances in ongoing courtroom argumentation (Ingrids and Aronsson, 2014). For reasons of space, this paper is primarily focused on syntactic and pragmatic aspects of adversarial uptake to negative interrogatives. The question-answer extracts in this paper have been chosen so that they illustrate recurrent patterns in the data at large. For ethical reasons and for reasons of space, they are chosen so that they are legible without extensive contextual information. All names have been anonymized and the study has been approved by the Regional Ethics Committee in Stockholm, Sweden. 3. Location during the proceedings Each courtroom examination of the main protagonists (the mother versus the Father) tends to involve a large number of questions. However: an important aspect of the interaction order (Goffman, 1983) of courtroom questioning is that it is a highly asymmetrical affair, particularly in cross-examination contexts: an attorney asks questions and the litigant or witness is to respond (see also, Archer, 2011; Culpeper, 2010; Ehrlich and Sidnell, 2006). The litigant is not expected to pose questions to the court or to comment on the attorney's conduct of the examination. In the standard case, the judge first invites the same side attorney to present his or her questions, then the opponent side. In the present data, the negative interrogatives were generally built as polar Y/N-questions where an agreement in the form of a minimal response e yes or no e would be the expected response (for a review of question formats, see Table 1 Location of negative interrogatives (direct examination vs cross-examination). Questions directed to
Direct examination
Cross-examination by other side
Total number of negative interrogatives
Mother Father Total
22 25 47
114 128 242
136 153 289
1 This collection includes negative in a polar format that projects yes/no-responses, e.g. ‘You didn't turn up at the scheduled meeting’? Interrogatives in, for instance WH-formats, such as ‘Why didn't you turn up’? are not included in this collection (see also, Heritage, 2002).
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Stivers, 2010). In the data, negative interrogatives questions (neg-Q) were marked and relatively rare phenomena that only constitute a negligible number of all questions involved. Yet, they seem to play a role in regulating the degree of aggravation when the attorneys address the different sides in the courtroom. One aspect of this is that the temporal localization of the negative interrogatives is quite orderly in that they overwhelmingly appear during the crossexamination (Table 1). In line with prior work on the bureaucratic rationality of the courtroom (Archer, 2011; Drew, 1992; Ehrlich and Sidnell, 2006), the cross-examination phase is a more adversarial context. In our data, the negative interrogatives were accordingly located in the interrogation by the opponent side attorneys. This interrogative format thus appears relatively late during the proceedings, in the second phase, in a context where heat has already started to build up. It should be noted, though, that the differences between the two phases of interrogation are striking: the quantitative analysis shows that there are more than four times as many negative interrogatives in the cross-examination phase. These findings thus extend and validate prior work on the adversarial nature of negative interrogatives (Clayman and Heritage, 2002; Heritage, 2002), indicating that the negative interrogative is not just an adversarial resource in presidential debates and news media, but also in courtroom examinations. 4. The parents' uptake in blame-account sequences On a strictly formal level, negative interrogatives might appear as a type of “neutral” question. Yet, respondents might still orient to the implicit hostile packaging, as has been documented in broadcasted news interviews (Clayman and Heritage, 2002; Heritage, 2002). In the following, I will analyze how hostility is built in situ through courtroom documentation of a number of examples that illustrate the parents' uptake to negative interrogatives in the data at large. In the courtroom, the litigating parents did not just respond to negative interrogatives through affirmative (yes/no-) responses. Instead, they recurrently oriented to the potential hostility of the questions in that they would build defensive social accounts. In most instances, the negative interrogatives thus elicited rebuttals from the testifying parent: either through denials of the blameworthiness of target events or phenomena or through social accounts (Buttny, 1993), that is, explanations for why the ascribed actions were less blameworthy or in some cases even justified. In yet other cases, the blame was re-allocated (e.g. to the ex-partner/school/social welfare authorities), that is, the litigants engaged in various types of counter-blame. Below, the blame-implicative impact of negative interrogatives is analyzed through litigants' uptake along a continuum of aggravated or adversarial aspects of courtroom talk and escalation during the proceedings: defensive accounts (ex. 1e2); counter-blame (ex. 3e9), and lastly adversarial talk (ex. 9e13), where the litigants actually challenge or confront the attorney or the court (see Fig. 1).
Fig. 1. Parents' uptake to negative interrogatives.
This figure represents something of a continuum of aggravated or escalated moves. The three categories are, however, not mutually exclusive. On an indirect level, all three types of uptake involve defensive features in that the participant might indirectly be seen to defend his/her own persona through re-allocating blame. In the courtroom data, counter-blame responses generally concerned the other party (Ex. 3e8 below). In less common cases, they also involve confrontations or challenges, directed at the opponent's attorney or the court at large (Ex. 9e13), a type of confrontational move that can of course also be seen as a special case of counter-blame. Challenges of the court at times escalated (Drew and Walker, 2009) quite dramatically, as when one litigant actually carried through a walk-out, leaving the courtroom as a protest toward the end of the cross-examination.
4.1. Defensive uptake (extracts 1e2) The attorney's negative interrogatives were formulated as polar yes/no-questions, calling for a single word response. Yet, most parents oriented to the blame-implicative nature of the negative interrogatives and provided some type of defensive account. The extracts below reflect the data at large, in that the negative interrogatives appeared during the crossexamination phase, a phase of the proceedings tends to involve substantial hostility. First, even the saving face (Goffman, 1967) of defensive accounts e as in excuses or justification eactually reflect the parents' orientation to the potential
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hostility or blame of negative interrogatives in that they recurrently chose to produce an account, to these polar questions where a minimal response (yes/no) might have served as a sufficient response.
2
Notably, none of these two mothers merely responded ‘yes’ in a single word format. As is typical in these data, they instead provided defensive accounts, orienting to the blame-implicative content of the polar question of the fathers' attorneys. In the first extract (ex. 1), M provides a defensive explanation in that she admits that the children wanted to stay for a longer time with their father, but that this only held true many years ago. She is thus justified in her position (of refusing him access to the children; on justifications, see Buttny, 1993; Scott and Lyman, 1968). In the next two cases, the mothers can, be seen to provide accounts in the form of excuses (Buttny, 1993; Scott and Lyman, 1968) for failing to get in touch with the family bureau, and for not getting in touch with the school. On another note, one of these two cases (ex. 2) features the Swedish epistemic particle ‘ju’ (Ex. 2: lines 3e4)3 which can be seen to highlight the parent's appeal to what can be seen as jointly taken for granted. It can often roughly be translated as ‘sure’, ‘indeed’ or ‘you know’. 4.2. Counter-blame: litigant's explicit blaming of others (extracts 3e8) The litigating two parents have to present and defend two contrasting and partly incompatible versions (Buttny, 1990; Drew, 1992; Edwards, 1995) of target descriptions of key events or phenomena. On an implicit level, many parents hint or suggest that the other party's narrative version is not correct. However, this is often accomplished through counter-narratives n and Aronsson, 2018; Ingrids and Aronsson, 2014). Even when there is no (see also, Buttny, 1990, 1993; Edwards, 1995; Franze overt hostility, most courtroom examinations thus do take place in a context of mutual blame and complaints, where each party has to tell the most compelling version. In the data, there are however also a number of cases where the parents criticize the other party explicitly. Some parents responded in more aggravated or hostile ways than others in that they actually spelled out who was to blame, explicitly reallocating blame to the more blameworthy party (the other parent). In many cases, as in the next two extracts, the negative interrogatives of attorneys of the other side were embellished or upgraded in that they were designed in the form of rhetorical or ironic questions.
2 The first number denotes the number in the corpus and the letter indicates parent (M or F). For instance, ‘M’ indicates ‘mother’, but it also refers to a fictive surname, e.g. Maria or Marianne or ‘Fredrik’/Father. In court, parents are normally addressed and referred to with their surnames. The next two numbers denote location in the proceedings (in this specific case, the neg-Q appears when 66% of all words in the proceedings have been spoken). As can be seen, most negative interrogatives occur in the final phase of the cross-examination. The translations from Swedish to English are kept as close as possible to the original audio-recordings in Swedish (Appendix A). 3 €l or visst (‘sure’ or ‘right’) as in Du In Swedish, tag questions differ from the English syntax. They are generally expressed through adverbials, e.g. va €l/visst ? (‘you asked him right/sure/?’). Constructions with postponed constructions like eller hur? (literally: or how?)’ tend to be less frågade honom va common.
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In both these cases, the parents respond to the opponent side attorney's (somewhat ironic) rhetorical question by presenting counter-blame. In their uptake, it is instead the attorney's own client who is to blame: for not ‘wanting contact’ (ex. 3) or for not fixing things (ex. 4). In both cases, there is what Edwards (1995) called rhetorical symmetry in that the speaker himself/herself was cast as blameworthy in the first place, but the other party is then to be blamed (on matching criticism, see also Buttny, 1990:233). In extract 4, the mother combines a defensive and blame re-allocation approach when she states that “No (.) not just right now when he's like this (.) he has to arrange his life”. As the mother in the first extract, she invokes a temporal dimension as an important way of building up a defensive account. She is not against spending more time or having more contact with their dad”, but it should be ‘not right now’. Yet, we do not know what ‘right now’ might mean, and the father's attorney then continues to probe this issue (not included here). In any case, the mother's account is designed as counter-blame in that her ex-partner himself is really the one to blame for the children not seeing him in that he has not arranged his life (lines 3e4). During the cross-examination in Ex. 4, the discussion escalates and builds up into more aggravated forms of blame over time, as when this mother states in a very explicit way that ‘he's got worse’ (line 7). At this point, the opponent attorney formulates another rhetorical and somewhat ironic question: ‘But you haven't ju had kind of so much contact now (.) he cannot have become so much worse? (extreme case formulation, ECF, in analyst's italics; lines 8e9), and M responds with another extreme case formulation about how he is worse in that he has ‘never spoken such foul words to the children’ (line 10; italics added). Again, there is thus rhetorical symmetry in terms of formats in that the same type of discursive device (ECF) is deployed by the attorney and the parent (M) for upgrading blame. On another note, the two respondents' counter-blame can be seen as evidence for how they see rhetorical questions as tough or challenging (Cerovi c, 2016; Tracy and Parks, 2012). Below is another illustration of counter-blame:
In this fragment, the question of the father's attorney is designed as a rhetorical question or an innuendo. The mother's uptake is apparently oriented to this ironic design. In any case, her uptake assumes the format of a somewhat hostile counterblame account: he is the one who is made accountable in that he is to ask the children about school matters. On an implicit level, she thus also withholds her own response. Such a non-response can be seen as a confrontation of the court in terms of courtroom procedures where the court asks questions and where witnesses are expected to respond (for related confrontations, see also extracts 9e11, below). It can be noted that she could have responded in a less combative or confrontational way (for instance through admitting that the father has a right to be informed, combined with an excuse of some kind).
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More or less routinely, things escalate and the heat builds up over time. Below are two extracts from another examination (where both interrogatives were located toward the end of the same proceedings, when 77% and 89% of the examination was over).
On line 1 (Ex. 6), the attorney's initial question can be seen as somewhat confrontational in that it invokes the children's potential fear of F's alleged ‘screaming’, something that has been discussed earlier during the proceedings. Within the implicit interaction order of the court, the attorneys (or the judge) are the ones to ask questions, and the litigants/parents are not expected to spell out how the examination is to be organized. In his uptake, the father can therefore be seen to challenge M's attorney e and courtroom order e in suggesting that the question should instead be directed to the children themselves (line 2; “You should ask them“). His proposal involves a breach of the social order of courtroom interrogations. Metapragmatic comments, like this one constitute marked events (see also, extracts 9e11 further below). Notably, M's attorney does not comment on who is to be examined, but instead just points out that according to the mother's testimony they (the children) have actually said that they are fearful (line 3). In response to this blame-implicative statement, the father designs a response that can be seen as a defensive counterblame, targeted at M's credibility (lines 4e6). In brief, she does not tell the truth: she merely says what supports her case. The social action of his response is quite complex. Negative interrogatives can partly be seen as rhetorical questions in that they syntactically assume a question format. Yet, they are rhetorically designed to state opinions, complaints or other assertions about how someone is at fault in some way (Heritage, 2002). In this extract, the father can similarly be seen to formulate something of a rhetorical comment in that these parents know that in court the children themselves are not heard by the attorneys. If at all, children are heard by social workers, but then before they prepare their reports to the court. What can also be seen (lines 4e6) is that F's response builds up into an innuendo that involves a redistribution of accountability in that M is cast as someone who has misinformed the court. F does not openly call her a liar, but within the overall frame of the dispute, this is what he means. It is for the court to decide who is to witness in court, not for the witnesses themselves (as father tries to do). He can thus be seen to simultaneously challenge the attorney and the court. Somewhat later during the same interrogation (ex. 7), M's attorney now poses another negative interrogative to F about whether what M says is not correct. In his somewhat heated uptake, on lines 6e7, the same father claims that everything M comes up with is just a case of ‘free confabulation’: she actually ‘knows nothing about it at all’ (italics added for ECF). It can be noted that his allegations of her blameworthiness are thus embedded in a number of extreme case formulations, that is, a type of conversational resource that is recurrently deployed in argumentative or adversarial contexts (Edwards, 2000; Pomerantz, 1986). As in most other cases in the courtroom data, the heat seems to gradually build up during the final phase of the crossexamination.
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In the cross-examination, the attorneys are at large more prone to deploy somewhat hostile formats, like negative interrogatives (cf. Table 1, above), and ironic or rhetorical question formats (extracts 3,4, 5, 8, 9 and 13). In the next extract, the attorneys' somewhat ironic negative interrogative leads up to a defensive social account in the form of counter-blame. As in several other cases of blame-ascription, this attorney packages a negative interrogative in a somewhat ironic rhetorical format (lines 1e2). The blame-implicative ironic or sarcastic proposition is unequivocal in that anyone can see that it is difficult e or even impossiblee to collaborate without actually talking to each other. In any case, the father (line 3) presents an account that attends to the attorney's innuendos, reallocating the blame to M, the most blameworthy party in his version of events.
In his discussion of hostility in media contexts, Heritage (2002) commented on the elusiveness of hostility. In the courtroom context, part of the elusiveness of courtroom hostility has to do with the ways in which the litigants recurrently deployed an assortment of conversational resources as ways of building up hostile resistance to the negative interrogatives by the other side. There was more than one type of verbal resource for engaging in adversarial talk. In the courtroom, rhetorical formats constitute one of many ways of building hostility. As noted, extreme case formulations (e.g., ex. 4, 7, 9 and 12) constitute another format that was routinely deployed by both attorneys and litigants. 4.3. Hostility and parents' challenging the court (extracts 9e13) Another type of adversarial resource involves metapragmatic comments. The attorneys and judges recurrently commented on the speaking rights of different parties, disciplining parties who spoke out of turn or who engaged in “argumentation” (instead of simply responding to attorneys' questions). The prominence of metadiscourse (Culpeper, 2010) is not surprising in view of the interaction order of the courtroom where attorneys and others regularly discipline witnesses who do not respond or who talk out of place. What is newsworthy in the data is that the witnesses themselves, the parents, at times talked about courtroom talk, commenting on the courtroom conversations (see also, ex. 6). In some cases, the parent would challenge or violate courtroom order through not responding at all or through explicitly withholding information (Ex. 9).
In this episode, M refuses to respond to a question by the opponent attorney (line 2). In the courtroom context, parents are indeed expected to provide responses to the attorneys' questions. This mother thus challenges the social order of the courtroom by explicitly withholding information. Moreover, she actually holds the attorney accountable for explaining why she is to provide the required information (lines 2e3), as she sees “no reason for why” to respond (italics added to her ECF) about what she evidently sees as private business. In quite a confrontational way, the opponent side attorney, not the litigant, is thus held accountable by this parent. And M is actually backed up her own attorney (line 4) who also questions FA's line of questioning (which concerned routine questions about child care arrangements). It can be noted though that the judge did not intervene. In another case, a parent has just filed a complaint at her ex-partner about an incident where he reportedly did not listen to their youngest child's wish to leave the car during a (highway) trip. The father's attorney can then be seen to undermine the alleged blameworthiness of F's actions through a question to M about the practical aspect of this unhappy incident. In her response to the opponent side version, the mother makes a meta comment about F's storytelling in court e “Yeah ok then he should say so” e implying that if this had been the case, he should indeed have told the court. Engaging in rhetorical symmetry, the mother can then be seen to proceed in formulating something that could be seen as another negative
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interrogative, directed to F's attorney “but isn't it odd that one-” (lines 3e4). At this point, the attorney points out that it is “not F, who is to be heard now” (line 5), invoking the interaction order of courtroom. Thereby, FA can be seen to orient to the somewhat confrontational nature of M's meta comment on who is to speak, as well as her negative interrogative, directed to the court. She does not merely defend her own narrative. She also calls into question F's capacity to tell his own version. In any case, F's attorney makes a metapragmatic comment, spelling out the overall norms for the social order of courtroom questioning. In spelling out the interaction order of the courtroom (line 5), F's attorney can be seen to criticize M for (disrespectfully) not responding to his question and for disrupting courtroom order, in asking questions of her own. Again, the conflict between FA and M can be seen to escalate. In the courtroom data at large, judge interventions are often restricted to demands for a few clarifications during the proceedings (e.g. ‘did you move in March or April’?). Other interventions by the judge tend to appear during the very last phase of the examination, and then often in the context of parents' faux-pas moves, as in the next case where the judge spells out the interaction order, protesting against the parent's challenging of the attorney:
The uptake of this father is rather confrontational in that he criticizes the attorney (lines 3e5). Moreover, he challenges the interaction order of the court, in asking MA a question about what the attorney thinks (line 8). In the following turn, the attorney orients to F's faux pas (line 9), spelling out that he is just there to pose questions (not to discuss opinions). Ultimately the judge actually intervenes, spelling out the social order of the courtroom: ‘Yes (.) >it's not a matter of what the attorney thinks but what you think<; lines 10e11). Both M's attorney and the judge thus orient to his breach of courtroom order (where the attorney is to pose questions, not the litigant). In legal examination contexts, it is normally attorneys or policemen who ask questions, not the clients or defendants (see also Cerovi c, 2016).
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In the next extract, another parent similarly poses (quite a confrontational) question to the attorney of the other side:
Here M's attorney challenges F, asking him if he has ‘never ’ brought his children on a business trip (line 1; ECF in analyst's italics). The father similarly deploys an extreme case formulation, responding in a somewhat heated way: ‘Never a pure business trip (.) no I've not done that’. Again, it can be seen that there is rhetorical symmetry in that both the attorney and the litigant deploy the same type of discursive device (ECF). The father then proceeds, producing a confrontational statement, formatted as an innuendo “(.) so that- I don't know >from where did you get that?<” (line 4). Another interlocutor might have reacted with some hostility to such a challenge. But as in many similar cases, the attorney merely responds to a parent's verbal attack through a minimal acknowledgment: here “right” (Sw: jaha) and then moves on to other matters. This is of course partly an issue, related to accountability: it is the parent who is accountable to the court, not the other way around. When a parent poses questions to the attorney s/he violates the interaction order of the courtroom. In several cases, as in the last episode, the parents' confrontations of the court are not just about the social order, but they actually involve rather implicit or explicit challenges of the court's competence. In the somewhat heated atmosphere of the cross-examination in several cases (especially in its final phase), the parents challenge the attorney or the court, in that they ask a question of their own, at times an ironic or even sarcastic question, as in (ex. 13):
Several negative interrogatives have a somewhat ironic twist. In this case, MA's initial question has the form of a rhetorical question, a neatly packaged criticism of F, rather than a genuine question for information. The respondent, the father might have responded in a more compliant way, by for instance, producing a defensive account ‘but then I might miss the train’. Instead, his response is designed in a partly symmetrical way in that he e like the attorney e deploys a somewhat ironic or even sarcastic format (line 4): “by missing the train, you mean?”, formulating an ironic rhetorical question of his own. Again, there is thus rhetorical symmetry (Edwards, 1995) in the way that hostility is built up, in that both parties deploy irony. Notably though, in this courtroom context, such a rhetorical question can be seen to constitute a type of irony that would ordinarily belong to the attorneys' toolkit for putting pressure on a litigant, not the other way around. 5. Concluding discussion The courtroom is an arena where social interaction takes place within an overall context of blame (Ingrids and Aronsson, 2014; Drew, 1992). Prior research on contrasting narratives in legal and couple-therapy contexts has documented what has been called a blame machinery (Ingrids and Aronsson, 2014; see also Buttny, 1996; Edwards, 1995) where blame tends to generate counter-blame. In the present cross-examinations, such recursive dynamics can also be seen in how the parents' defensive and hostile uptake is related to adversarial features in the attorneys' negative interrogatives. The child custody proceedings appear as a setting for heated arguments. Yet, the heat is carefully choreographed. During the direct examinations of their own clients, the attorneys tend to avoid innuendos and (sarcastic) rhetorical questions, whereas negative interrogatives and other aggravated moves tend to be located in the cross-examination phase, often toward the end of this phase, where they surface as adversarial manifestations of hostility that is built up cumulatively in social interaction. In the courtroom data set, negative interrogatives constitute one of many devices, along with (other potentially) ironic formats, deployed by attorneys in moving examinations into a more adversarial direction. The parents' uptake similarly reveals a range of ways where they can be seen to orient to the hostile or blame-implicative features of negative
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interrogatives. The findings do not indicate that one type of conversational device automatically leads to one distinct type of conversational format in the recipient's uptake. However, there are a few relatively neat cases of rhetorical symmetry (Edwards, 1995), for instance, in how both parties deploy irony or extreme case formulations. The coordinated actions of attorneys and respondents are instead mutually reflexive in more subtle and complex ways. If anything, the findings show that over time during courtroom interaction, the heat increases through an assortment of aggravated moves e including negative interrogatives, irony, rhetorical comments, metapragmatic questions and extreme case formulations. Another complication is that both attorney talk and the parents' subsequent uptake at times contains several adversarial features, within one single turn. However, gradually, adversarial features build up into more and more mutual blame and to greater heat and escalation. What is striking is that, in spite of the complexity of the blame machinery, the litigating parents, in many ways, seem to orient to the potentially adversarial nature of negative interrogatives. First, one type of evidence is the sequential location of negative interrogatives in that they overwhelmingly appear during the cross-examination, rather than during the initial phase of the proceedings (Table 1). The negative interrogatives are thus linked to hostility through their very distribution, in that they overwhelmingly appear during the cross-examination. Second, analyses of the uptake show that the participants themselves recurrently orient to the blame-implicative nature of negative interrogatives in courtroom talk. The prototypical negative interrogative is cast in a polar format, projecting yes/noresponses (Raymond, 2010; Stivers, 2010). Yet, in most cases, the litigants provided defensive accounts (as exemplified in transcripts 1e13), orienting to the blame implicative nature of negative interrogatives. The participants recurrently responded through social accounts (Buttny, 1990; Edwards, 1995). Many of these accounts involve novel blame ascriptions, where blame is re-allocated through more or less hostile attacks, directed to the other parent or to professionals in public institutions, such as the child psychiatry clinic or social welfare office (extracts 3e8). As discussed by Clayman and Heritage (2002), accountability is an important aspect of the potential hostility of negative interrogatives. The blame-account sequences were recurrently upgraded through diverse discursive devices, such as ironic or rhetorical moves, extreme case formulations or meta-communication. Third, some of the parents' escalated uptake involved confrontational moves that could be seen as ways of challenging the court (extracts 9e13). Part of the heated or hostile argumentation was conveyed through the parents' ironic comments. Moreover, the parents engaged in metapragmatic suggestions and questions about the courtroom procedures. When the parents commented on who was to ask questions, they could be seen to breach the social order of the court in casting the other side attorney, and thus the court, as the accountable party who was to respond to the parent's questions and suggestions (and not the other way around). Such moves were treated by the court as confrontational in that they could be seen to disrupt the social interaction order of the courtroom. The overall findings of this study can thus be seen to validate and extend prior work on negative interrogatives as parts of aggravated moves in institutional contexts (Clayman and Heritage, 2002; Edwards, 1995; Heritage, 2002). In brief, the analyses document a number of ways in which parents and attorneys could be seen to co-construe hostility in courtroom interaction, partly through negative interrogatives. As has been pointed out by Heritage (2002), hostility is an elusive phenomenon. However, the courtroom is something of a laboratory for adversarial formats. In a number of ways, the findings testify to the adversarial nature of negative interrogatives: they are primarily located in cross-examination settings, they generate accounts, rather than the projected minimal yes/no-responses, and they recurrently appear in the context of counter-blame, together with an array of other devices, such as extreme case formulations, (ironic) rhetorical moves, and metacommunication that are all deployed for building up confrontations and hostility. Moreover, the findings contribute to work on adversarial communication in courtroom contexts (cf. Archer, 2011; Culpeper, 2010; Tracy and Parks, 2012) in demonstrating the role of negative interrogatives and rhetorical questions for building hostility and escalation. Conflicts of interest None Public data It is impossible to share the data corpus for ethical reasons; as the data are highly sensitive (audios of courtroom talk about intimate matters in child custody proceedings). Acknowledgement Funding for this project was received from Forte: The Swedish Research Council for Health, Working Life and Welfare [grant 2014-1554, PI: Aronsson]. Earlier versions have been presented at ALAPP, Milan and at meetings with CLIP, Uppsala n, Bjo €rn Sjo € blom and other members of the University. Thanks are also due to two anonymous reviewers and to Anna Franze Discourse Group, Stockholm University.
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Appendix. Swedish originals
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