Uslegalwriting.com-Let’s Ditch The Ancient Latin

by ewen and donabel

Personally, I’ve in no way cared for the use of Latin in legal writing. To my ear, terms like “res ipsa loquitur” and “inter alia” just search and sound pretentious, and I consider they interrupt the flow of a legal argument (Who really wants to shift languages mid-thought?). I also do not favor employing “the said” in front of every noun that crops up, and I attempt not to write “subsequent to” when “after” will do nicely. These practices just complicate items far more than required. For many years now some legal writing scholars, like Bryan A. Garner, have been beating the drum for employing plain English in our legal discourse. Apparently this campaign has had a very good impact upon judges.

Dr. Kathy Kellerman, a communications consultant, recently published online a slide display revealing the final results of a survey of 800 judges (Flammer, Sean. (2010). “Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English.” The Journal of the Legal Writing Institute, 16, pp. 183-221). The study inquired regardless of whether the judges found plain English or traditional legal writing a lot more persuasive in the memoranda and briefs submitted to them. The benefits were telling. A lot more than two-thirds of the appellate judges surveyed identified plain English far more persuasive, and 63% of the trial judges surveyed agreed. Amongst girls judges, the numbers were even more dramatic–83% liked plain English.

This is all very good news, it appears to me, and apparently we are moving in the right path but it doesn’t mean that as advocates we can now just jettison all our latinisms and other conventional verbal baggage. Our job nevertheless is to persuade the judge assigned to our situation, today, and that individual might not agree with the surveyed majority.

So what to do? Straightforward answer: If you can, study some of your judge’s latest writings. If he or she shows an affinity for the hoary old style, then by all means load up your submission with “the said, “heretofore,” “inter alia,” and any other burdensome lingo that comes to thoughts. If you really don’t have any clear evidence that your judge favors pretension, leave it alone. Go with plain English. According to Sean Flammer’s study, the odds are now with you.

And of course, just before I leave this subject I ought to consider that you might not be amongst the choir to whom I preach. Possibly you like the occasional latinism by yourself. In that situation I leave you with these thoughts: A communi observantia non est recedendum. Translation: There ought to be no departure from typical observance (or usage). By frequent usage, I mean ordinary English. Or maybe this: Acta exteriora indicant interiora secreta. Translation: Outward acts indicate the thoughts hidden inside of. That is, if you persist in the traditional style, you may be telling the reader much more about oneself than you want to.