I Don't Speak Latin, and Neither Do You

Why do some judges and lawyers feel compelled to unnecessarily use Latin words when they write? Though some Latin words have becomes terms of art for which there is no good English substitute--prima facie, for examples, or habeas corpus--an English equivalent should be used if one exists.

Inter alia? Write "among others." Ex abundanti cautela? Write "out of abundant caution." In praesenti? Write "in the present."

There are a thousand such examples, and each makes the point: Latin words get in the way of comprehension and make the writer look like a jerk. That's why all right-thinking judges and lawyers should shun the unnecessary use of Latin in legal writing--except in those circumstances, of course, when a wannabe blog author is searching for a clever weblog title.

Concluding note: This post was written after encountering yet another unnecessary Latin word in a recent judicial opinion. Some of the examples used in this post are from Garner's entry on "Latinisms" in A Dictionary of Modern Legal Usage.

Comments

[Yeoman]

I confess I have a weakness for the Latin phrase. I like them. I guess my excuse is that it adds a little inherited dignity to an otherwise pretty rough profession.

But I rarely actually use them, other than common ones, and those infrequently.

I generally fine that's the case with other lawyers and the courts here as well.

The phrases I do really hate, however, are the weird phrases left over from the early days of Common Law pleading. They are ridiculous.

For example, the phrase "Comes Now" at the start of a pleading. If the pleading was actually read in open court to the illiterate masses it makes sense. Otherwise, i't's just a really odd phrase. "Comes Now Mr. Brown, by and and through his attorney. . ." I routinely banish that from my pleadings if the secretary, used to other lawyers, includes it.

Another one that shows up in writs is "Know all men by these presents". Ridiculous.

[yeoman]

Wow, re reading my comment, I'm reminded why I shouldn't type before I finish my morning coffee. Sorry for the typos.

Time to go get another cup. . .

[Eh Nonymous]

Yeoman: it's the substance, not the form, that matters.

Which is why the Federal Rules abandoned the old style of pleading, and merely require notice pleading, see FRCP 6 and Conley v Gibson. Substance, not form. A "short and plain statement" of the grounds for jurisdiction, of the claim, and of the relief requested.

No more trial by ambush (is "trial by ambush" one of your post categories here, Evan?). No more traps for the unwary in that you filed the wrong kind of writ, no more supposed distinction between law and equity. Hollow laugh: some remedies are to this day called equitable, and "only available if the kind of claim brought would have allowed an equitable remedy." Money is quintessential damages at law; injunctions the classical equitable remedy. But sometimes an injunction forces money to be paid, particularly if damage is liquidated. So what do courts do? They look for ways to revive and retain the stupid distinctions.

Oh, and Evan: what if you *do* know some Latin? I've heard that you do - on comments over at LU. Is it okay to use "quid pro quo"? How about "pro se"?

I guess that's why you wrote "unnecessary use" - because sometimes Latin is the best, clearest, shortest way to say something. I.e., id est. "Such as" works too, but takes more space - but it may be comprehensible. E.g. for "for example," same deal.

I don't just shun Latinates; like Yeoman, I hate Legalisms and jargon in general. Never use one syllable when four will do, seems to be the thought. Also, I once tried to write up a draft order, and deleted all the WHEREFOREs. I had to be gently corrected that this was not the way one did things for that court.

[Eh Nonymous]

Argh, "FRCP 8". See what I said? Substance, not form. I looked it up to be sure, and then forgot to correct myself.

[Yeoman]

It is indeed the substance, not the form, that counts, or is supposed to. Although making the substance count over form still is problematic, oddly, in some Courts. In many courts the spirit of the Rules prevades, and wide leeway in the interest of justice prevails. Still, in a few others, judges can be found who are still attached to form. It's interesting. And appellate courts can come in and revive form, and do, from time to time.

Well, know all men by these presents that the aforementioned yeoman, having extended his greetings to the Honorable Viewer, Comes Now back into his worksite domicile, and thereby seeks to render a service unto his clients by returning to his vaction, and, thereby, get to work.

[Buttmonkey]

While I generally hate the use of Latin phrases in legal documents, I must confess to being a fan of "inter alia."

[Robert Williamson]

My blog comment will say "AMEN."

[Editor 'n' Chef]

In Blawg Review #17, The Greatest American Lawyer points us to a list of Latin phrases that can come in handy at trial; like when counsel doesn't want to alarm the jury but has to tell the judge, "Braccae tuae aperiuntur."

[yeoman]

One I wish saw a little more use of by the Courts is deminimus non curat lex.

As a doctrine, it appears to be dead.

I have to say, actually, I prefer the obscure Latin phrase to one dropped in, usually in other types of writings, from French or German. At least with Latin, I can drag out my old Blacks Law Dictionary if I need to. But if I'm reading something and suddenly the author drops in a phrase such as, "As the French say, "Tu est un grande fromage", it's irritating.

I suppose I should just go cheerfully to my French or German dictionary, but it is a bit aggravating.

[mythago]

My all-time favorite is "supra" and "infra". Because nobody will understand what you mean if you just say "See above."

[Kevin Heller]

That's because no one "speaks" latin -- it's a written language -- that's what I learned during my two years of latin in high school anyway.

Nolite te Bastardes Carborundorum.

[Evan]

Kevin: Touche.

That's French, which is a spoken language.

By the way, I took two years of Latin too, and we had to read it and speaker it.

My mother said it would be useful if I ever became a doctor. Becoming a lawyer was my own idea.

[yeoman]

In a somewhat serious vein, if a person picks up an understanding of Latin, picking up nearly any of the Romance languages is easy.

And, if you can pick up an understanding of German, most of the Germanic langauges can be puzzled out.

Truth be known, most European languages aren't that tough to get around in a rough sort of way, but Latin is a good place to start.

It didn't really die, it just went on to hang out in France, Spain, Romania, etc.

[Shelley]

Re: silly antiquated English pleading -- I gained incredible respect for a (female) probate commissioner I met last summer, who said flatly, "no one is going to come or pray on any of my paperwork."

[yeoman]

"Becoming a lawyer was my own idea."

Errare humanum est.

[yeoman]

Shelly, I had the same reaction when I first started practicing law and my older partner stated something like "Comes now", what the heck does that mean? Nobody is going to come in and do anything, get rid of it."

[Aaron]

I posed a question to a lawyer, many years back, about his use of "Know all men by these presents" in a deed. "What does that mean?" The answer was, as you might expect, "I don't know, but everybody uses that language."

Perhaps we could move to more plain English phrases. Not, "Your Honor, I humbly petition for de novo review of the prior proceeding", but "Judge, may I please have a 'do over'?"

[MM]

I have problems with replacing 'inter alia' with 'among others'. 'Among others' means 'among other people' in my English, not 'among other things'. I suppose you avoid this problem. But I'm normally translating, so I don't have that much freedom. I can't write 'He submitted that the Higher Regional Court had, inter alia, violated Article 6 and Article 20.3 of the Basic Law'. There are times when even 'among other things' doesn't work well in a sentence and I write 'inter alia'!

[YGB]

I agree wholeheartedly -- well, almost. "Supra" and "infra" can be useful in briefs where you are flirting with a word limit -- don't laugh; you wouldn't believe the number of times I've had to participate in the "word count game" on briefs governed by the FRAP (not usually at my initiative, I'll say in my defense.)
Also, if the judge likes certain terms, latin or otherwise, do what you think will make the judge most comfortable in briefing. Your audience for briefs is not a plain-spoken jury and good writing is not necessarily elegant, simple or direct, but whatever works. An example -- when opposing a summary judgment motion, I've seen some skilled practitioners in cases involving complex technology lard up the facts in a most confusing and dense way, complete with a thicket of latinisms. One look at that mess, and the judge must have thought -- there's got to be a fact issue in there somewhere and I'm just going to let the jury figure this ugly mess out -- the issue survived sj.

[jane]

These Latin and Old ENglish and French phrases are VERY IMPORTANT because they are link to the ROOTS of the LAW....rather than dumb things down..people should SMARTEN UP...

[Joe]

I agree with Jane -- the use of Latin phrases shows that these ideas have been under consideration for some time. They can lend some weight to your argument, if used sparingly. "Vincit omnia veritas."