Identification of Procedural Acts Performed at the Trial: Considerations in the Context of the Actual Utterances of Non-professional Participants of Court Proceedings

1. Introduction

Empirical studies² on the process of communication taking place during hearings before ordinary courts have demonstrated in particular that utterances of proceedings’ participants³ who were present at the hearing were identified as procedural acts of a certain type (as motions to adduce evidence, admissions of claims, withdrawals of motions to adduce evidence, etc.) despite their varied wording. Sometimes the wording varied considerably from canonical, explicit forms that emerged in legal practice, employing appropriate legal terms⁴. An analysis of the empirical material gathered for the purposes of the aforementioned research revealed a total of 41 clear examples of procedural acts being performed in a manner which, for the purposes of said analysis, was referred to as “non-legal”, but which proved effective, at least in communicative terms⁵. Moreover,

these acts were performed by non-professional participants in proceedings (i.e. persons without legal education, having no institutional function in the court proceedings)6. Results of the analysis conducted in the scope defined above justify attempting to answer the question what mechanisms enable identifying the procedural acts on the basis of utterances of participants in proceedings that are not explicit utterances used to perform such acts⁷. The aim of this article is to characterize specific mechanisms that serve to identify procedural acts, i.e. standard interpretation, intentional explaining, as well as determining and asking for confirmation of the sense of the act being performed. This is also the order in which they will be discussed in the article. In this way, the presented picture of the process of identification of procedural acts will reflect the actual relationships between the mechanisms described. Meanwhile, utterances of participants in proceedings whereby participants performed certain procedural acts during court hearings (and which were gathered in the empirical material) will illustrate the topics discussed here.

2. Interpretation of procedural statements in scholarship and case law

Identifying the acts of participants in judicial proceedings as procedural acts of a certain type is part of the issue which in procedural law studies is sometimes referred to as “interpretation⁸ of procedural statements”. There is no need to summarize the discussions in this area, taking place both among legal scholars and in case law, in this article⁹. But it is worthwhile to point out some of its elements. Firstly, this discussion is taking place in the context of the applicable procedural norms, formulated respectively in Article 130(1) second sentence of the Code of Civil

6 For more detailed results of the analysis of research material in this regard, see: K. Gmerek, Rozprawa…, p. 299ff.

Procedure10 and in Article 118 (1) and (2) of the Code of Criminal Procedure11. The regulation concerning civil procedure is less elaborate than that concerning criminal procedure and, additionally, applies to pleadings (documents), rather than all procedural acts, which may also be performed in speech (orally)12. In studies on civil procedural law, it is therefore debatable whether rules of interpretation of declarations of intent laid down in Article 65 of the Civil Code13 can be applied to interpreting procedural statements made during civil proceedings14. Secondly, this discussion is characterized by diversity, both in terms of the conclusions being drawn and the level of acceptance for the conclusions already drawn¹⁵, e.g. in case law¹⁶, and the terminology used. Due to the topics chosen to be discussed in this article, it is worthwhile to present the last area of diversity mentioned above in more detail. Both in scholarship and in case law various terms which, generally speaking, refer to phenomena connected with the communication process. These include, for instance: “purpose of the statement”, “literal understanding of charges”, “literal wording”, “form of the act”, “formal approach to a given act”, “substantive content”, “motivation”, “obvious inaccuracy”, “reasons by which a person is motivated”, “actual intentions”, “actual content”, “actual content being the essence of the statement”, “actual meaning of the procedural act”, “wording of the statement”, “contents of the document”, “the author’s intent”, “really existing intent, actually manifested to the outside world”, “internal intent”, “the party’s intent”. These terms are linked with various domains of knowledge¹⁷, though it is rather infrequent that attempts are made to explain these

10 Act of 17 November 1964 – Code of Civil Procedure (consolidated text: Dz. U. 2019 item 1460 as amended). 11 Act of 6 June 1997 – Code of Criminal Procedure (consolidated text: Dz. U. 2018 item 1987 as amended). 12 The issue of interpretation of procedural acts performed orally is extremely rarely taken up in literature or case law. See, e.g. Supreme Court judgment of 4 February 2013 (V KK 419/12), Legalis online legal information system No. 640701. 13 Act of 23 April 1964 – Civil Code (consolidated text: Dz. U. 2019 item 1145 as amended). 14 In particular: J. Mokry, Wykładnia procesowych oświadczeń w sądowym postępowaniu cywilnym [Eng. Interpretation of Pro- cedural Statements in Civil Court Proceedings], “Studia Cywilistyczne” 1975/XXV–XXVI, p. 190; M. Piekarski, Czynności materialnoprawne a czynności procesowe w sprawach cywilnych (wybrane zagadnienia) [Eng. Substantive Law Acts and Procedural Acts in Civil Cases (Selected Issues)], “Studia Prawnicze” 1973/37, p. 126; M. Plebanek, Nadużycie praw pro- cesowych w postępowaniu cywilnym [Eng. Abuse of Procedural Rights in Civil Proceedings], Warszawa 2012, s. 38–41. From a comparative law perspective: K. Markiewicz, A. Torbus, O wykładni pisemnych oświadczeń stron w postępowaniu cywilnym rozpoznawczym [Eng. On Interpreting Parties’ Written Statements in Civil Examination Proceedings], “Polski Proces Cywilny” 2013/1, p. 27ff. In more recent case law, see e.g. Supreme Court rulings: of 15 January 2015 (IV CZ 105/14), Legalis No. 1180604; of 10 February 2016 (I UZ 32/15), Legalis No. 1415259. See also the reflections of Andrzej Municzewski on this issue and on the possibility of referring to directives of legal interpretation in the process of interpreting procedural statements (A. Municzewski, Wykładnia…, p. 65ff). The ability to apply rules of interpretation of declarations of intent is suggested mainly because this area has been theoretically developed much better than interpretation of procedural statements, especially in the already classical works by Zbigniew Radwański. See e.g. Z. Radwański, Wykładnia oświad- czeń woli składanych indywidualnym adresatom [Eng. Interpretation of Declarations of Intent Submitted to Individual Addressees], Warszawa 1992; Z. Radwański, K. Mularski, Wykładnia oświadczeń woli [Eng. Interpretation of Declarations of Intent], in: Z. Radwański, A. Olejniczak (eds.), Prawo cywilne – część ogólna. System Prawa Cywilnego, t. 2 [Eng. Civil Law – General Part. Civil Law System, Vol. 2], Warszawa 2019, p. 61ff.

terms in the publications analysed for the purposes of this work (including in case law)18. The meanings of the above terms (and similar ones) is sometimes suggested by the manner in which they are juxtaposed, e.g. “literal wording” and “actual content” or “really existing intent, actually manifested to the outside world” and “internal intent”. Sometimes it is also indicated what objects (in the broad sense) are included in the scope of a given term or not19. However, in the publications on interpretation of procedural statements analysed for the purposes of this work it is impossible to identify any systematic description of certain universal interpretive mechanisms that enable us to recognize the sense of acts performed by participants in the proceedings or reconstruct their content20. Moreover, authors of these publications only exceptionally refer to any concepts developed in linguistics, philosophy of language, studies on communication or general theory of law to elucidate or explain issues connected with interpreting procedural statements, as well as formulate directival statements in this regard²¹. In procedural law studies, no coherent conception has been developed for interpreting procedural statements, either descriptive or normative in character²².

3. Procedural acts as conventional acts and their identification

For the purposes of this paper, procedural acts are considered a variety of conventional acts²³. It is also assumed that procedural acts are conventionalized in the context of procedural norms (i.e. at the level of procedural norms it is possible to recreate at least one constitutive rule²⁴ for a conventional act classified as a procedural act). Moreover,

18 Reflections about the meaning of terms of this kind or the functions of their designates (e.g. in civil procedure) are undertaken definitely more often in literature than in case law. On the “form of procedural acts”, see: S. Cieślak, Formalizm…, p. 121ff. 19 See, e.g. K. Markiewicz, Oznaczenie…, p. 347. 20 The relations between the sense of a given conventional act (including a procedural one) and its content are complex and require presentation in a separate paper. In this place, it is enough to indicate that certain elements of the content of an utterance made by a participant in proceedings have to be recognized in order for the utterance to be identified as a procedural act of a certain type (on the propositional content, see section 4.1), while others do not. Legal scholarship also draws attention to certain relations in this scope. See, e.g. K. Woźniewski, Prawidłowość…, p. 236.

procedural acts are at least double-conventionalized acts. In this paper it is adopted that the lowest level of conventionalization is that of a speech act25, while that of a procedural act is a higher level. The process of recognizing the sense of procedural acts is viewed in this article as a process of identifying (recognizing) the acts of certain actors as procedural acts of a given type. It is also assumed that one of the elements of this process is intentional explanation26 of the creation of the material substrate of that act, that is, answering the question why (for what purpose) a certain actor took (or omitted to take) a certain action²⁷. Naturally, making the above assumption presupposes another assumption, namely, that conventional acts are performed in an intentional manner, or that they are co-constituted by intention²⁸. The term “co-constituted” is meant to draw the reader’s attention to the fact that an intentional explanation of the creation of the material substrate of a procedural act is a necessary, though not sufficient, element for identifying a given act as a procedural act (or more broadly, a conventional act). The procedural acts discussed in this paper are at the same time communicative actions, performed and identified in the process of communication. So it is time to reveal, in a possibly concise manner, what assumptions relating to the phenomenon of communication are made in this article. It is recognized here that the term “communication” means a complex process which is (simultaneously) interpersonal²⁹, sociocultural, symbolic, intentional, and which performs or at least is capable of performing various functions³⁰. The essence of communication lies in communicative actions which, in this article, are perceived as conventional acts (as described above), which follow the aforementioned assumptions concerning the process of communication³¹.

25 Although it is imaginable that a procedural act (or at least a fragment of an act) is performed by means of a code other than language, e.g. by nodding one’s head. 26 In this text, the term “intentional explanation” is used as defined by Olgierd Bogucki. See: O. Bogucki, O konstytutywnej współzależności wyjaśniania i identyfikowania czynności konwencjonalnych [Eng. On Constitutive Co-Dependency of Explaining and Identifying Conventional Acts], “Ruch Prawniczy, Ekonomiczny i Socjologiczny” 2019/2. This mechanism, which serves to identify speech acts, is also brought to attention in pragmalinguistics, although it is not referred to by the aforementioned term. See e.g. A. Awdiejew, G. Habrajska, Komponowanie sensu w procesie odbioru komunikatów [Eng. Composing Sense in the Process of Message Reception], Łódź 2010, p. 219.

Viewed in this way, speech acts are communicative actions (thus conventional acts) that are performed using the linguistic code. With respect to speech acts, in the context of achievements of the philosophy of language and pragmalinguistics, references are mainly made to the tradition of John L. Austin and John R. Searle, as the tradition whose assumptions best correspond to those of the concept of conventional acts in law32. Theoretical grounds of the analysis presented in this article also have strong roots in communicative grammar33. At the end of section 3, we should also draw attention to two issues. The way they are viewed in this paper is a consequence of the theoretical assumptions described above. Firstly, in this paper it is assumed that in the process of identifying procedural acts (as well as other conventional acts) an important role is played by both internalist and externalist³⁴ elements. Consequently, it is not predetermined, at the level of theoretical assumptions, that in the process of identifying conventional acts a certain element plays a key role³⁵. Thus the approach presented in this paper cannot be classified as exclusively internalist or externalist³⁶. Secondly, the issues discussed in this text do not belong to the field of legal interpretation. In Polish jurisprudence, including the theory of law, legal interpretation concepts were developed independently of the concepts of interpretation of declarations of intent or procedural statements³⁷. Naturally, this is a consequence of the particular features of a legislative text, including its normative status, compared to other texts typical of the legal sphere in general.

32 This concerns mainly the assumption relating to the normative consequences of performing a conventional act (S. Czepita) and speech acts (e.g. J.L. Austin and J.R. Searle). On the concept of speech acts, where special emphasis is on the normative consequences, see: M. Witek, Akty mowy [Eng. Speech Acts], in: J. Odrowąż-Sypniewska (ed.), Przewodnik po filozofii języka [Eng. A Guide to the Philosophy of Language], Kraków 2016, p. 20. See also: M. Witek, Mechanisms of Illocutionary Games, “Language and Communication”, 2015/42, p. 14. 33 The assumptions made in this paper are connected with the so-called interactive level of communication (standard interpretation, intentional explanation), where a speech act constitutes the smallest unit of communication. This theoretical conception called by the authors “communicative grammar” was developed by Aleksy Awdiejew and Grażyna Habrajska. They discuss it in numerous publications. See e.g. A. Awdiejew, G. Habrajska, Wprowadzenie do gramatyki komunikacyjnej [Eng. Introduction to Communicative Grammar], vol. 1, Łask 2004; A. Awdiejew, G. Habrajska, Wprowadzenie do gramatyki komunikacyjnej [Eng. Introduction to Communicative Grammar], vol. 2, Łask 2006; A. Awdiejew, G. Habrajska, Kom- ponowanie…; A. Awdiejew, Gramatyka interakcji werbalnej [Eng. The Grammar of Verbal Interaction], Kraków 2007. Furthermore, the assumptions taken from communicative grammar are consistent with other theoretical assumptions adopted in the paper.

4. The process of identifying acts performed during the hearing as procedural acts of a certain type

As mentioned in the introduction, focus of interest of this paper is certain mechanisms used in the process of identifying acts of participants in proceedings as procedural acts of a certain type, performed in direct contact during a court hearing. These mechanisms include: standard interpretation, intentional explanation, as well as determining and confirming the sense of the performed act. These mechanisms are not, obviously, the only ones applied in the process of identifying conventional acts (including procedural ones). Yet, due to space constraints, this paper does not attempt to present an exhaustive diagram of the process whereby procedural acts are identified, be it in the descriptive, model or normative approach. On the one hand, the selection of the presented mechanisms takes into account whether or not they were the subject of reflection in jurisprudence³⁹. On the other hand, it takes into account the fact that mechanisms chosen for analysis can in some aspects be considered to be opposite. Standard interpretation and intentional explanation are treated in this paper as universal mechanisms, i.e. ones used in the process of identifying any conventional act. In the case of standard interpretation this is because we make such interpretation after coming into contact with the form of the act (this is discussed in more detail in section 4.1). Meanwhile in the case of intentional explanation this is justified by the assumption relating to conventional acts being co-constituted by intentions⁴⁰. Conversely, the mechanisms of determining and confirming the sense of the performed acts (as they are characterized in section 4.2) are not universal in the sense defined above. If they are introduced into the process of identifying a conventional act, this usually proves the failure of attempts at identification by means of universal mechanisms, or at least lack of certainty as to the result of this process⁴¹. They can also be characterized as more explicit than the universal mechanisms described above. In the dialogues analysed for the purposes of this paper, we can indicate specific statements that demonstrate that a specified mechanism has been used. The above characteristics enables us also to determine a chronological relation between the identified mechanisms. Thus the paper assumes that in the process of identifying procedural acts it is universal mechanisms that are applied in the first place, standard

Let us begin by quoting several actual utterances of participants of court proceedings, which were not explicit for the performance of a specific procedural act, but which were identified by the court as procedural acts:

1) Participant⁴²: “Your Honour, we would like to ask for extending the thesis also to include the expert witness (...)”; 2) Claimant: “I would like, Your Honour, if I may, to submit after all the photocopies of these documents that were sent to me by email by the persons who had been deceived (...)”; 3) Witness: “But today, could there be some kind of confirmation I was here?”

For each of the above utterances we are able, on the basis of its wording, to identify a specific speech act:

Table 1. Standard interpretation at the level of speech acts – examples

Standard form used Standard situation when used

“Your Honour, we would like to ask (...)” request

“I would like, Your Honor (...)” wish (optative utterance)

“But today, could there be (...)” request expressed in a polite and indirect manner⁴³

Source: own materials.

The mechanism that enables doing so is referred to in pragmalinguistics as standard interpretation. It consists in linking the standard form of use⁴⁴ of a given speech act with the standard situation in which the given form is used⁴⁵. The form of utterance used in the above examples directs the receiver to the level of speech acts, rather than directly to the level of procedural acts⁴⁶, therefore it is not explicit for performing these acts. The process of identifying a procedural act that uses the mechanism of standard interpretation would then be as follows with respect to the above utterances:

Non-standard interpretation⁴⁷ (level of procedural acts) 1) Participant: “Your Honour, we would like to ask for extending the thesis also to include the expert witness (...)” request

Utterance Standard interpretation (level of speech acts)

extension of the evidentiary thesis (modification of motion to adduce evidence) 2) Claimant: “I  would like, Your Honour, if I may, to submit after all the photocopies of these documents that were sent to me by email by the persons who had been deceived (...)”;

wish motion to adduce evidence

request to be issued confirmation of appearance at the hearing Source: own materials.

3) Witness: “But today, could there be some kind of confirmation I was here?” request expressed in an indirect way

In the case of the analysed utterances, standard interpretation might lead to identifying procedural acts of a given type for at least two reasons. Firstly, the use of the form of a specific speech act is not a constitutive rule for performing these procedural acts. Secondly, the result of standard interpretation did not block the possibility of identifying the acts performed by participants as procedural acts of a certain type. Because if the participant’s utterance, e.g. an answer to the judge’s question whether a confirmation of appearance in court was necessary, were as follows:

Witness: “Your Honour, I do not need a confirmation today, I happen to be on a leave”,

the standard interpretation, whereby the speech act is identified as negation of the assumption expressed in the question, would block further interpretation towards identifying this utterance as a  request for confirmation of appearance at the hearing. The mechanism of standard interpretation enables us to recognize a specific speech act on the basis of the wording of the utterance, when the procedural act is performed in a non-explicit manner. Due to the fact that standard interpretation is made on the basis of the wording of an utterance, we can say that it has a primary character in the process of identifying procedural acts. It is the result of this thought process that determines whether further interpretation aimed at identifying a given procedural act will be possible. Consequently, even though some procedural acts can be performed using several typologically different speech acts⁴⁸, the choice is not unlimited, because it depends on the possibilities of standard interpretation.

The mechanism of intentional explanation is connected with the assumption made in this paper that one of the elements of identification of a given act as a conventional act of a certain type is the process of intentional explanation of the created material substrate of this act, alternatively an act recognized at a lower level of conventionalization (e.g. a speech act recognized by means of standard interpretation). The importance of using this mechanism in the process of identifying procedural acts becomes particularly clear when we are dealing with procedural acts performed in a non-explicit way. Let us return to the aforementioned examples of utterances of participants in the proceedings. As the acts were performed by non-professional participants in proceedings, we cannot be certain that they formulated their utterances with an intention of the force typical of the identified procedural act. The force of a given conventional act (including a speech act) is determined mainly by its normative effects, which create a certain normative structure for the actors “entangled” – to use a general and pictorial word – in the act⁴⁹. We can thus assume that participants in proceedings performed the above acts (formulated their utterances) with the intention and awareness of the force of the given act adequate to the force of the speech act, respectively: (1) request; (2) wish, and (3) request (expressed in an indirect way), or adequate for the force of the procedural act, respectively: (1) extension of the evidentiary thesis (modification of a motion to adduce evidence); (2) a motion to adduce evidence, and (3) request for confirmation of appearance at the hearing. Let us illustrate the issue by analysing another utterance of a participant in the proceedings:

Table 3. Normative structures determined by the level of speech acts and the level of procedural acts

The interested person⁵⁰: “Your Honour, can we also apply for a refund of costs?”

level of speech acts: request expressed in an indirect way level of procedural acts: motion for reimbursement of the costs of proceedings normative structure: determined by the rules of linguistic communication: the sender gives the receiver full freedom as to whether to grant the request (lower position of the sender and dominant position of the receiver)⁵¹

normative structure: determined by the applicable legal norms, which shape for the applicant the situation of authorization and entitlement⁵², placing the applicant in this way in a dominant position vis-a-vis the receiver, i.e. the judge Source: own materials.

Taking into account the fact that both the utterance presented in the above table and the utterances of participants of proceedings quoted above were identified by judges as procedural acts of a certain type, we can assume that they could have been made with an intention whose force was inadequate to the force typical of a procedural act of a certain type. Hence a question arises: the recognition of what intention (with what force) is necessary/sufficient for identification of a procedural act of a given type and how to do that? The answer to this complex question may be intentional explanation⁵³ which takes into account the propositional content of an utterance⁵⁴. The propositional content of an utterance can concern e.g. a future act relating to evidence, reimbursement of costs of proceedings or issue of a confirmation of appearance at the hearing. Taking the above into consideration, let us analyse again the utterance of the interested person, quoted above:

Table 4. Process of identifying a procedural act taking into account intentional explanation

The interested person: “Your Honour, can we apply for a refund of costs as well?”

1) standard interpretation: a) standard form of speech act used: ”(...) can we apply for a refund of costs as well?” b) standard situation when this form is used: request expressed in an indirect way 2) intentional explanation taking into account the propositional content of the utterance: will (intention) to bring about a state of fact in the form of reimbursement of the costs of proceedings 3) other elements of the context in which the utterance is made: consistent with the rules of performance of the act of applying for reimbursement of costs of proceedings 4) non-standard interpretation: motion for reimbursement of the costs of proceedings

Source: own materials.

In the above case, the result of standard interpretation, i.e. identification of the act of making a request on the basis of the wording of the utterance, did not block the possibility of further interpretation in order to identify the aforementioned procedural act. The decisive issue (apart from recognition of specific elements of the context in which the utterance was made, e.g. the character of the entity performing the act) was thus the intentional explanation of the interested person’s behaviour, taking into account mainly the propositional content of the utterance, because it pointed to the future act of reimbursement of the costs of proceedings.

Therefore it seems justified to assume (on the basis of an analysis of the above utterance and other utterances of participants, which cannot be quoted here due to space constraints) that in order to identify a participant’s act as a procedural act of a given type performed in a non-explicit manner, with an illocutionary force inadequate to the force of a procedural act, it is sufficient to recognize, taking into consideration the propositional content of the utterance, that the participant intentionally strives to bring about (make happen) a certain state of fact, regardless of whether he/she “asks”, “applies” for it, “demands” it, etc.

4.2. Determining and confirming the sense of the performed act

Performing procedural acts during a court hearing, therefore, in direct contact, is conducive to both applying the mechanisms mentioned in the title of this section and their recognition by an external observer, because they take the form of specific utterances, like in the examples below. Let us start by quoting the following dialogue:

Presiding Judge: “Right, please tell us, you failed to file your reply to the statement of claim on time, so please tell us what your stance is in this case, do you challenge the assertions contained in the statement of claim or do you agree with them?” Respondent: “Yes, I agree (…) I can accept it all as my fault, because this anyway...” Presiding Judge: “Do you admit the claim? The full claim?” Respondent: “Yes.”

This dialogue is an example of using, in the process of identifying a procedural act, the mechanism of determining the sense of the performed act. Taking into consideration the universal mechanisms discussed above and the mechanism discussed in this section, the process of identifying a procedural act that the respondent is performing can be presented as follows:

Table 5. Process of identifying a procedural act taking into account the mechanism of determining the sense of an act: first example

Presiding Judge: “Right, please tell us, you failed to file your reply to the statement of claim on time, so please tell us what your stance is in this case, do you challenge the assertions contained in the statement of claim or do you agree with them?” Respondent: Yes, I agree (…) I can accept it all as my fault, because this anyway... 1) standard interpretation: a) standard form of speech act used: “Yes, I agree (…) I can accept it all as my fault (…)” b) standard situation when this form is used: acceptance (of the suggested action) 2) intentional explanation taking into account the propositional content of the utterance: will (intention) to bring about a state of fact described in the statement of claim⁵⁵

3) other elements of the context in which the utterance is made: consistent with the rules of performance of the act of admitting the claim 4) preliminary non-standard interpretation: admission of (the full) claim

Source: own materials.

In the analysis presented in Table 5 above, the mechanism of determining the sense of a procedural act was placed before the moment of making the non-standard interpretation, that is, the moment of final identification of a participant’s act as a procedural act of a certain type. The steps taken by the presiding judge before determining with the participant the sense of the act performed thereby do not permit us to assume that the judge finally identified the procedural act⁵⁶. However, the presiding judge undoubtedly made a preliminary identification of the participant’s act as a procedural act of a given type (which is demonstrated by the assumption in the question asked of the respondent).

Let us analyse one more dialogue between participants in the proceedings:

Claimant: “I uphold [my motions] Your Honour and I’d still like to supplement this testimony of mine, due to the fact that I (…) received the respondent’s reply, so I’d like, very briefly…” Presiding Judge: “Do you want to submit a document or do you want to be interviewed?” Claimant: “No, because I did not write any document” Presiding Judge: “So you would like the court to interview you again?”

Table 6. Process of identifying a procedural act taking into account the mechanism of determining the sense of an act: second example

Claimant: “I uphold [my motions] Your Honour and I’d still like to supplement this testimony of mine, due to the fact that I (…) received the respondent’s reply, so I’d like, very briefly…” 1) standard interpretation: a) standard form of speech act used: “(…) I’d still like to supplement this testimony of mine (…)” b) standard situation when this form is used: wish (optative utterance) 2) intentional explanation taking into account the propositional content of the utterance: will (intention) to bring about a state of fact in the form of supplementing the testimony given so far 3) other elements of the context in which the utterance is made: consistent with the rules of performance of the act of applying for the order relating to submission of a procedural document/supplementary interview of a party 4) preliminary non-standard interpretation: motion for the order relating to submission of a procedural document/supplementary interview of a party 5) determining the sense of the act: Presiding Judge: “Do you want to submit a document or do you want to be interviewed?” 6) indication of the sense of the act: Claimant: “No, because I did not write any document” 7) confirming the sense indicated by the claimant: Presiding Judge: “So you would like the court to interview you again?” 8) non-standard interpretation: request for a supplementary interview of a party

Source: own materials.

In the above case, the analysis of the process of identifying a procedural act of the participant was conducted in a similar manner as in the earlier example and it also demonstrated application of the mechanism of determining the sense of the procedural act. But this example does exhibit certain particular features. Firstly, when determining the sense of the act, the presiding judge took into account in the assumption of the question addressed to the claimant at least two typologically different procedural acts, thus limiting, at least in communicative terms, the “choice” of senses of the performed act. Secondly, the presiding judge additionally confirmed the sense of the act as indicated by the claimant, most likely because the claimant’s utterance was inconclusive (“No, because I did not write any document”). At the end of this section, let us analyse a dialogue between participants in the proceedings, where the mechanism of confirming the recognized sense of the participant’s act was applied:

Witness: “Your Honour, today I did not make it to be off work, so would a pass...?” Presiding Judge: “In our office, I would like you to (…) then the secretary will note it down for you everything that is required to confirm your presence here, because this is what you mean, isn’t it? Right.”

Table 7. Process of identifying a procedural act taking into account the mechanism of confirming the sense of an act

Witness: “Your Honour, today I did not make it to be off work, so would a pass...?”

1) standard interpretation: a) standard form of speech act used: “(…) would a pass...?” b) standard situation when this form is used: request expressed in an indirect way (in the form of a question) 2) intentional explanation taking into account the propositional content of the utterance: will (intention) to bring about a state of fact in the form of confirming appearance at the hearing 3) other elements of the context in which the utterance is made: consistent with the rules of performance of the act of applying for confirmation of appearance at the hearing 4) non-standard interpretation: application for confirmation of appearance at the hearing

5) confirming the recognized sense of the act: Presiding Judge: “In our office, I would like you to (…) then the secretary will note it down for you everything that is required to confirm your presence here, because this is what you mean, isn’t it? Right.” Source: own materials.

The utterance of the witness from the above dialogue, by means of which he performed a procedural act of a given type, was non-explicit for this act for twofold reasons. Not only did its wording not direct the listener to the right level of conventionalization (i.e. the level of procedural acts), but even determining the propositional content required special interpretive effort, taking into account the situational context in which the utterance was made (it mentioned a “pass”, rather than “confirmation of appearance at the hearing”). Nevertheless, the witness’ act was identified by the presiding judge as an application for confirmation of appearance at the hearing, as demonstrated by the presiding judge providing information on how the witness can obtain such a confirmation. The presiding judge’s additional question about the sense of the act was addressed to the witness already after it had been identified as a procedural act of the

given type. So in principle the mechanism consisting in confirming the sense of the acts performed by the participants in the proceedings is “triggered” after completion of the process of identification of such acts as specific procedural acts. Yet, the decision to use it is a sign of uncertainty, to some extent, as to the selected option. Meanwhile the result of applying this mechanism modifies the level of acceptance of this option by the entity identifying the given act. In this sense, the mechanism is obviously connected with the process of identifying conventional acts (including procedural ones).

5. Conclusion

The process of identifying certain acts as conventional acts of a given type is a complex thought process which, like any other thought process, is prone to cognitive and inferential errors⁵⁷. Though in reality it is usually conducted in an instant and without reflection (thanks to long socialization training connected with participation in communication), on the basis of certain assumptions developed in science, as well as externalized elements of this process it is possible to indicate specific mechanisms that are used in the process. The mechanisms described in the article have different particularities and different functions in the process of identifying procedural acts. The mechanism of standard interpretation is described in pragmalinguistics as a universal mechanism for interpreting speech acts, because it is triggered once we have learnt the wording of an utterance. In the process of identifying acts of participants in the proceedings as procedural acts of a given type, this mechanism sets the further interpretation trajectory, taking into account the rules specified at the level of the legal system. In the case of acts performed in a non-explicit manner (which were discussed in this paper) the identification process is mediated by recognition of the level of speech act on the basis of standard interpretation. In the case of explicit utterances (see examples in n. 3) standard interpretation points directly to the level of procedural acts. In turn attention is drawn to the mechanism of intentional explanation both in pragmalinguistics (with respect to speech acts) and in general theory of law (with respect to conventional acts). With respect to the process of identifying procedural acts, this mechanism enables us to determine, in particular after taking into account the propositional content of the utterance, the intention with which the participant is acting and whether this intention is sufficient to perform a procedural act of a specific type. Mechanisms of determining and confirming the sense of the conventional act being performed take the form of various utterances co-creating the communicative event which is an emanation of the process of identifying a given conventional act (including a procedural one). Resorting to those mechanisms proves that the person is uncertain as to the sense of the act being identified, while the result of their application enables them to remove such doubts. Naturally, the process of identifying procedural acts as a whole and the described mechanisms that are used in this process are not the whole spectrum of questions relating to identifying procedural acts (let alone identifying conventional acts in general). One of the reasons is that the issues discussed in this paper concern procedural acts

performed in speech (in the conditions of direct contact during the hearing)⁵⁸. Suffice it to say that thorough analysis is needed of those issues that were just outlined in general terms in this paper, such as the process of determining the propositional content of utterances. The reflections presented in this paper, though limited in terms of subject, do however enable us to systematize some terms used also in legal scholarship and case law (sometimes without proper reflection) by ascribing to them specific meanings, references, while ascribing to their designates specific functions in the processes described above. They also enable partial explanation how various forms of utterances of non-professional participants of court proceedings are identified as performance of a procedural act of a certain type. Meanwhile the fact that some mechanisms are described in this paper as universal for the process of identifying conventional acts in general (or at least those performed by means of linguistic code) delineates the potential scope of future reflections.