It’s 2012 — Nix Latinisms in Your Legal

Writing
by Matthew Salzwedel on July 25, 2012 in Lawyering Skills

One consolation for overwhelmed law students is that they get to learn the secret language of
lawyers, which lets them, for example, smugly drop centuries-dead Latin words and phrases
during cocktail-hour chatter. But unnecessary and misused Latin invariably does violence to
legal writing in Plain English. So why do lawyers continue to use Latinisms, and why do
Latinisms pose such a threat to good legal writing?

Why do Latinisms pervade American law?

A Latinism is a word, idiom, or phrase borrowed from Latin. Latinisms pervade American law
because after the Romans conquered most of the Western Word—including England—the
language of Cicero became ingrained in the English language. When the colonists brought
English common law to America, the Latin came with it. And although we’ve made progress
over the centuries eliminating many Latin words and phrases from the American legal lexicon,
they still persist because law schools teach 19th- and early 20th-century caselaw, where
Latinisms are numberless.

I surmise that American lawyers’ insistence on using Latinisms comes either from not knowing
that Latin is no longer preferred, or just not caring about the issue. Richard Wydick makes this
point in Plain English for Lawyers:

[T]oo often lawyers use Latin . . . phrases needlessly. Sometimes they do it out of habit or haste;
the old phrase is the one they learned in law school, and they have never taken the time to
question its use. Other times they do it believing mistakenly that the old phrase’s meaning cannot
be expressed in ordinary English, or that the old phrase is somehow more precise than ordinary
English.

Why are Latin words and phrases so destructive to legal writing?

Regardless of its history, the trend is to eliminate Latin from legal writing. There are five main
reasons why: (1) Latin is inconsistent with the Plain-English Movement in American law; (2)
Latin tends to obscure rather than clarify prose, even if your reader has legal training; (3)
Lawyers often use Latin as a substitute for lucid expression of complex thoughts, or merely to
impress the reader; (4) Latin can result in comic legal-writing blunders; and (5) Latin can lead to
dangerous, sometimes outcome-determinative ambiguities.

What’s this word?!

Most non-lawyers don’t know any Latin, and they don’t care to learn it by reading your
legal writing. One goal of the Plain-English Movement is to achieve a legal-writing style that’s
comprehensible to both lawyers and non-lawyers. If you subscribe to the Plain-English
Movement, which I do, you should assume a non-lawyer reader won’t understand a Latin word
or phrase.

So Plain English dictates that you always should use a common English substitute, if possible, if
only to prevent frustration in a non-lawyer reader who cares little about whether you know some
Latin.

I have to use a legal dictionary?!

Latin also reduces clarity in legal writing, even if your reader has been exposed—in varying
degrees—to certain words. If a reader who has been exposed to Latin doesn’t know what a Latin
word means, he too will need to stop reading and refer to a legal dictionary, or, perhaps, skip to
the next sentence.

If your reader is the judge you’re trying to persuade with your legal writing, the consequences
become more serious. It’s a big problem if the judge needs to refer to a legal dictionary or
summon a law clerk to understand what a Latin phrase means (And that assumes the judge will
take the time to do that. Not likely).

As Justice Antonin Scalia and Bryan Garner point out in Making Your Case: The Art of
Persuading Judges, “the judge who does not happen to know the obscure Latin phrase you have
flaunted will think you a twit.” You don’t want to risk being thought a twit.

“This Latin word explains my argument. Look it up.”

As Bryan Garner suggests in The Elements of Legal Style, some lawyers use Latin as a substitute
for expressing complex thoughts, or simply to impress their readers. So if a lawyer doesn’t know
how to articulate precisely a complex legal argument in Plain English, he might default to a Latin
phrase to obscure his muddled reasoning. Latin, then, can be a crutch a lawyer uses to
mask laziness in complex thought.

Worse, though, is the lawyer who uses a Latin phrase to show his erudition, which quickly can
put-off a reader who has no patience for show-offs.

Delicious corpses

Latin also can result in comic legal-writing blunders. In Garner on Language and Writing (ch.
Lapses Memoriae), Bryan Garner recounts that occasionally you’ll see in an opinion the term
corpus delecti instead of the correct Latin term corpus delicti (the body of a crime). But corpus
delecti translated to English means something only necrophiliacs would find appealing.

Lex loci delecti, which also occasionally appears in opinions, translated means “the law of the
place where delight occurred.” Of course, lex loci delicti (the law of the place where the tort was
committed) is the correct phrase. So it’s dangerous to dabble in Latin if you don’t carefully
proofread your writing.

Malpractice is the same in Latin and English

Even when you correctly spell Latin words, they still might result in unintended, outcome-
determinative ambiguities. Consider the Latin terms res judicata and collateral estoppel. Their
modern English substitutes are claim preclusion and issue preclusion, respectively. But lost on
many lawyers is that these Latin terms can mean very different things. In his Dictionary of Legal
Usage, Bryan Garner explains that collateral estoppel is “a miniature of res judicata: the former
applies to issues, the latter to entire claims or lawsuits.”

Despite their different meanings, lawyers commonly but incorrectly use res judicata and
collateral estoppel interchangeably. Once again, the Dictionary of Legal Usage: “One might cite
any number of instances in which judges have written collateral estoppel when they meant res
judicata and vice versa.” The Fifth Circuit concurs: “[T]he terminology used in this area of law
often breeds confusion.”

The moral is that it’s no fun trying to explain to a client that you waived a preclusion argument
or defense because you didn’t use the correct Latin term in your summary-judgment brief. So
why take that risk if there isn’t any countervailing benefit?

Which Latin words should you keep, and which ones should you nix?

In The Elements of Legal Style, Garner says that some Latin words and phrases have properly
filled voids in the English language. Latin terms like alibi, amicus curiae, bona fide, quorum, de
minimis, ex parte, habeas corpus, nolo contendere, prima facie, res ipsa loquitur, stare decisis,
and voir dire arguably are examples of void-filling Latin words (though Garner points out that if
your reader is a non-lawyer, it might be preferable to use friend of the court instead of amicus
curiae, and doctrine of precedent instead of stare decisis).

But there are other Latin words and phrases that Garner calls “imported jargon,” which you
shouldn’t use. Some examples commonly found in legal writing are:

 ab initio (from the beginning)

 actio(n) ex contractu (contract action)
 actio(n) ex delictu (tort action)
 arguendo (for the sake of argument)
 in esse (in actual existence, in being)
 inter alia (among other things), inter alios (among other persons)
 res gestae (things done) (Wigmore: Res gestae is “not only entirely useless, but even
positively harmful.”)
 simpliciter (simply, summarily, taken alone unconditionally; absolutely)
 sua sponte (on its own motion; without prompting)
 sui generis (of its own kind; individual; like only to itself)
 sui juris (of full age and capacity)
  vel non (or not, or the lack of (it, them)) (Garner: Vel non is “pretentious surplusage.”)

As general rules, then, you shouldn’t use a Latin word or phrase if there’s an acceptable English
substitute. You should use Latin only in the rare case where the Latin word or phrase fills a void
in the English language, and there are no acceptable English substitutes.

If you follow these rules, your readers will thank you for sparing them Latin 101, and you will
insure yourself against a possible spelling or usage blunder, or, worse, an otherwise-avoidable
malpractice claim.

So eliminare Latine et scribere plane!

(photo: http://www.flickr.com/photos/63794459@N07/6476432253/)