Stare Decisis

Via Walter Olson at Overlawyered, a decision out of Florida’s First District Court of Appeals in Parrish v. Cummins Power South holding that it does not violate a litigant’s constitutional rights for lawyers to use Latin. You can’t make this stuff up.

Parris, a pro se (to which Wally observes, “oh dear, there we go doing it ourselves”) plaintiff whose complaint was dismissed on the bases of res judicata and collateral estoppel, raised the damning claim:

A main focus of this appeal is Parris’s contention that the company (and presumably its lawyers) “chose to dredge up these esoteric terms from a dead language to confound, stupefy [sic], [and] isolate” him to deny him his day in court. He says the “use of Latin is a violation of [his] Constitutional Rights as a citizen of the United States of America” and that the legal profession embraces a culture of allowing attorneys to “extract a fee by chanting unknown terms from a dead language.”

The opinion neglects to mention what language might have been used that wouldn’t stupefy [sic] Parris, but that’s not the point. The court doesn’t take particular issue with the gravamen of Parris’ argument.

As a general linguistic truth, the use of archaic Latin phrases does not facilitate understanding of the adjudicatory process and should be avoided. Examples of “needless Latinity” abound, such as “capacitas rationalis” and “res gestae.” Bryan A. Garner, A Dictionary of Modern Legal Usage, 501-02 (“Latinisms”) (2d ed. 1995). As Professor Garner states: “The rightful objects of our condemnation are the bombastic, vestigial Latinisms that serve no purpose but to give the writer a false sense of erudition.

Of course, “capacitas rationalis” isn’t quite in the same league as res judicata, and nobody has ever liked res gestae. But to rely on Bryan Garner’s nasty hatred of precision, that he derides as “bombastic, vestigial (as if vestigial was derived from the Hawaiian for “monkey tails”) Latinisms,” is just rude.

What’s most disturbing is this the court’s mention of this contention:

As Professor Garner points out, collateral estoppel and res judicata “have long caused confusion among judges and advocates.” Garner, supra, at 169 (“collateral estoppel”).

So is Garner arguing for the elimination of words and phrases with precise meanings because the stupidest among us screw it up?  Henceforth, all briefs will refer to “the law thingy” with a citation to Garner?

If you didn’t learn the meaning of res judicata and collateral estoppel, and in particular the differences between the two, write your civ pro professor and demand a refund. But words and words, and having definitions which enables human beings to communicate with each other. We use words all the time which others, sadly, may not adequately comprehend. That’s why they make these big books called dictionaries.  And if one gets hives from paper, there is always the internets, where tubes lead directly to definitions as well. They can be found with a minimum of effort.

But whether a word or phrase is in Latin, Hawaiian, Anglo-Saxon or Cyrillic, if you don’t know its meaning, there is a fairly strong chance you will find yourself “stupefied.” The solution is learn what the hell words mean, not seek to excise words from the lexicon.

As for the contention, bolstered by such well-intended but grossly misguided academics as Garner, that the use of precise language is bombastic and serves only to create a false sense of erudition, I call bullshit.

Many terms and phrases, despite their linguistic lineage or perceived ostentatiousness, continue to have utility in the profession, even if they are poorly understood. Legal lingo, like the specialized vocabularies of other professions such as medicine, is imbued with phraseology that can obscure meaning and detract from comprehension even for those laboring within the guild.

Don’t blame words because you have no clue what they mean. If you don’t know what all those weird legal words mean, look them up. All words have definitions, and ignorance doesn’t relieve you from the constraint of their meanings. Sheesh.

40 comments on “Stare Decisis

  1. Pingback: Is it unconstitutional to use Latin phrases in legal proceedings? - Overlawyered

  2. John Burgess

    Thank you, Scott! I am smarter than I was 15 minutes ago. I now know the difference between res judicata and collateral estoppel. It didn’t hurt at all.

      1. Jim Majkowski

        Illegitimi non carborundum

        I would think res judicata more familiar, and more useful, to anyone with a passing familiarity with law than “bombastic”, “vestigial,” or “erudition.”

        1. SHG Post author

          Garner’s word choice raises a curious problem: one either knows what words mean or doesn’t, and that is as likely to include “bombastic”, “vestigial,” or “erudition” as res judicata. Words are words. Either you know their definition or you don’t.

  3. Gent Kepuska

    Not to be contrary for no reason, but there isn’t a per se(and I do it myself) reason to use Latin words in their original form in the legal field outside of historical reasons. The tech industry has to invent new English words all the time or define them quite specifically in new ways. I’m quite sure that even an erudite professor of language 150 years ago wouldn’t have understood the use of the word well, quadword (nor would he have understood the definition of 4 words comprised of the native number of bits used in the given CPU’s default register size) in the context of computers, or bioinformatics as examples. The specificity of a given term d’art is determined by the context and the industry. There are plenty of English terms that in jurisprudence carry very specific and articulable definitions that don’t match common usage. And res judicata has a literal translation into English that doesn’t have as specific a meaning as it is given in the Legal profession, and if one was using it as an individual who speaks Latin in a normal context, then it wouldn’t carry with it any special definition as it really means a thing, matter, or affair having already been before a judge. (Res is a little ambiguous without a sentence to provide it context, at least as I remember my Latin classes)
    As such it’s not unreasonable that if there were a law, regulation, or policy requiring the use of English in all legal correspondence. There are other organizations that have such rules. However there isn’t any such rule that I know of that could be used to require courts to use exclusively terms in English or loanwords that are formally adopted into English such as etcetera.

    1. SHG Post author

      For the purposes of expressing one particular legal concept, here are the choices:

      1. Res judicata.

      2. Relitigation is precluded by the rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit.

      Pick one.

      1. Gent Kepuska

        I agree that if those were the only two choices the answer is obvious. The question becomes why is Res Judicata better than another term d’art, or invented descriptive term?
        As a counter example, and noting as a tech sector professional I don’t know if this term is actually comparable, we have Double Jeopardy which also has to my untrained mind, a very specific legal definition.

        Just for curiosity, at what point in history did Res Judicata aquire that meaning? (I note that I recall a term Res Adjudicata that might or might not have come from Justinian’s codification of law in latin class)

        As an honest question how is Res Judicata that different than quadword which is essentially a madeup term with arbitrary specific meaning?

        1. SHG Post author

          A mixed metaphor, if you will. Double jeopardy comes from the Fifth Amendment to the Constitution which provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” which was shortened. So we refer to it as “double” rather than “twice.” Seems pretty rational.

          As for why “res judicata” rather than “salami,” certainly res judicata is a far better shortcut to the concept given its meaning, and second, if we’re going to use a word or phrase to embody a concept, why not the one that has historically been used rather than make up another new substitute? The alternative to keywords is full definitions, which, I might add, remains relatively confusing to those who haven sat through the hour long lecture that explains exactly what it means and are obviously lengthier.

          1. John Burgess

            I propose “Done deal” as a replacement for res judicata. For collateral estoppel, how about, “Been there, done that.” I’ll grant that the latter lack the terseness, but it gets the point across pretty clearly. It could go in the “That horse has already left the barn” direction, I suppose.

        2. C. N. Nevets

          But if they went to made-up words outside of Latin, the lay person still wouldn’t know them. I think the point remains that it’s incumbent on you to learn the vocabulary of your endeavors, even if they are being chanted in a dead language.

          1. SHG Post author

            Exactly. Whether it’s Latin, lunchmeat or some brand new mashup of words, it makes no more comprehensible without knowing what it means. So all things being equal, swapping Latin for any other shortcut changes nothing.

    2. Fubar

      The tech industry has to invent new English words all the time or define them quite specifically in new ways

      A moment, a brief time sentimentical,
      Can mean r-squared times density, the integral.

      That is old tech, no portent of doom.
      Having said that, I’ll go to my room.

  4. Wheeze The People™

    Assuming arguendo that the case lacked merit, you have to admit any appeal which contains the word stupefy is still worth it’s weight in gold. It’s so Cochran-esque . . . Go, go, go Johnny, go . . .

  5. Virgil T. Morant

    The part that I don’t understand is why stupefy is noted with a sic. It seems in the first instance that’s from the Court’s concurrence. I’ll grant that it’s fun to ridicule Mr. Parrish’s claim of stupefaction, but the word is spelled correctly.

    1. SHG Post author

      Beats me, but since the quote is from the opinion, and the opinion included the [sic], it had to be faithfully reproduced.

  6. Nigel Declan

    Hear, hear SJ! I have long decried the efforts by the courts to “dumb down” legal language by eliminating convenient Latin phrases which identify specific, nuanced concepts. Certainly, if a lawyer is attempting to show off by dropping Latin phrases into every sentence, the court is free to tell him or her to pick his pretensions at the door, but suggesting that habeus corpus or res judicata be dropped in favor of lengthier English language phrases which tend to be not only less accurate but are difficult in themselves to understand. If a pro se client or lawyer who has received the “benefit” of plain-English legal education doesn’t understand a particular phrase, he or she is free to ask the court to explain, much like he or she has been free to do if the misunderstood legal phrase happens to be in English.

    This desire reminds me of the efforts by some to bowdlerize and render inoffensive the English language by rejecting the use of specific words and phrases with particular meanings. However noble the aim, it serves in both cases to render language both imprecise and inefficient, sacrificing communication, the ultimate aim of language, at the altar of superficial “correctness.” As noted, Garner’s outcry against the use of Latin combined with his ivory-tower love of lengthy, multi-syllabic words convey a desire not to improve communication, but merely to anglicize it to serve his academic interests and stroke his oversized professorial ego. Because, as we all know, the academics who don’t or have never set foot in the courtroom are the true practitioners and guardians of the law.

  7. ShelbyC

    How come “collateral estoppel” is in italics? Isn’t it English? Certainly not lay English, of course.

  8. Stephen

    I’ve always quite liked the argument that if you do have “jargon” it’s *better* for the lay community if it’s blatant jargon. That means you’re not taking innocuous words and giving them an arcane twist (“by the way, we all got together two hundred years ago and decided that ‘white’ means ‘black'”). You may not immediately know what the unfamiliar Latin phrase means but you definitely know you should find out.

    That and I always suck in a breath when I see media reporting that says “the case centred on mens rea (intent)…”

  9. Turk

    Garner argues against needless use of pretentious language. Some (not all) Latin falls in that arena.

    I’ve taken his writing CLE class twice and loved them.

    His main theme is making your writing, from briefs to simple letters, clear and easy to read.

    If the reader must stop mid-sentence to look up obscure words then the main thought you’ve been trying to communicate could be lost.

    A very simple example from a cover letter: “enclosed please find” should be changed to “enclosed is…”

    It isn’t about Latin, it’s about writing well (and removing unnecessary words).

    1. SHG Post author

      So you’re saying that the court is lying when it quotes Garner’s arguments? That’s outrageous. Garner should write them a very clear letter in plain English calling them mean names.

      By the way, did you really take a course just to learn to change your cover letter from “enclosed please find” to “enclosed is…”? Seriously? And you paid for this?

      1. Turk

        The court cites to “needless” Latinity, not all.

        And the letter example was the easiest example to tap out on an iPhone.

        His class was great.

  10. Turk

    If there are judges that confuse CE and RJ, as Garner asserts, isn’t that a good thing to know if you are writing a brief?

    1. SHG Post author

      So Garner’s solution to stupid judges is be stupider than they are? Nah. But Garner argument has nothing to do with knowing how stupid your judge is. He argues that lawyers should dumb everything down off the top because, well, we would somehow be better human beings by never using precise language. Turk, it’s a political thing on Garner’s part, his personal agenda, and it’s absolute horseshit. If he was just arguing against bad writing, there would be no argument. But he argues that it’s politically incorrect to use precise language in favor of coming off more common and ordinary, all the while he’s the most pretentious and “erudite” writer around when it serves his purpose. Garner’s full of shit.

  11. Turk

    No, his argument is not to dumb it down, nor to be imprecise. His argument is to win by writing persuasively, and that this is achieved by writing clearly and without clutter.

    1. SHG Post author

      So what’s your favorite flavor of Kool Aid? Because, you know, “enclosed is…” is so much more persuasive than “enclosed herewith, please find…” I can’t wait to see how many more acquittal I get because of that.

      1. Virgil T. Morant

        Pardon the further intrusion, but this is something I have a serious opinion on. I’m a big fan of the Classic flavors. Like Uvam. Of course Tropicae ferrum is delicious too.

        Thank you. I’ll be here all septimana.

        1. SHG Post author

          I, for one, appreciate your opinion on this subject, not being sufficiently familiar with the flavors myself to deserve an opinio mea.

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