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.