A corpus-assisted discourse analysis of descriptive confusion frames and identity positioning in leave to appeal decisions of the HKSAR

Abstract The present study explored how descriptive confusion frames, i.e., those that report confusion experienced by individuals other than the current writer, were articulated in leave to appeal decisions of the HKSAR appellate courts. Combining frame semantics and identity positioning theory, the study analysed 410 leave to appeal decisions (approve and dismiss) across four legal areas (Administrative, Criminal, Contract, and Tort). Quantitative analysis revealed no significant differences in the frequency of use and construction of descriptive confusion frames between approve and dismiss decisions and across the four legal areas: confusion frames function primarily as a generic feature rather than as a determinant of leave to appeal outcomes. Drawing on identity positioning theory, a more qualitatively oriented analysis demonstrated that in dealing with confusion, judicial writers upheld a kind of positive social identity face in which claims that judges in lower courts had triggered confusion were frequently rejected. Relatedly, in dealing with factual findings of confusion by judges in lower courts, judicial writers were more deferential. Less respect was accorded to the professional identity of counsel who were often positioned as incorrect, misleading, and unreasonable in making claims of confusion. The findings offer implications for legal training initiatives, specifically developing a greater sense of robustness to criticism amongst junior counsel. Future research arising from the present study could explore attitudes within the judiciary to the expression of confusion.