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.
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!