Vail Daily column: Ipse dixit and other legal circumlocutions
Sometimes, lawyers talk funny. Exactly, what is it about attorneys that engenders such prolixity? Ipse dixit is but one of seemly limitless examples. Years ago, I ran across this archaic term in a brief. (More on briefs in just a sec).
“Ipse dixit.” Now there’s a term only a mother tongue could love. Provided that the mother tongue is Latin. Literally, it means, “he himself said it.” It is an assertion resting on no authority other than the individual holding forth what was said. Most people, I presume, would say something more like “that’s unsupported!” Or perhaps, more eloquently, “that’s a bare assertion!” But not lawyers in their briefs. Oh no; lawyers prefer to ipse dixit, sending the faint of heart scrambling to their dictionaries to unknot the convoluted legal lexicon.
I found the gem poised like a rattler in tall grass. The lawyer had written that the conclusions of a testifying expert should be discounted, “ipse dixit”! He then when on to suggest that in light of the expert’s ipse dixit, the defense should be given the opportunity to “voir dire” him which should, of course, be done “in liminie.” Oh my, the plot does thicken, doesn’t it?
This is as good as place as any, I suppose, to mark your place and pause for a quick scratch of the head. Voir dire, did you say? In liminie?
Well, I didn’t, but the lawyer did.
“Voir dire” in its literal translation means “to speak the truth.” “In liminie” means at the beginning.
Okay, then, let’s dissect the lawyer’s intent. In making his Daubert challenge (more on Daubert in a moment), the lawyer in this briefs (yes, there were two, not merely one invoking “he said it himself” objections!), suggested a “speak the truth” of the putative expert at the threshold. Reads like a good bodice-ripper, don’t you think?
Daubert is the seminal case dealing with expert testimony. It stands, like most of us, largely on two legs. The first deals with methodology; essentially, did the expert follow something like the scientific method in reaching his conclusions? Second, will what the expert has to say help the jury understand the controversy? If the answers are “yes” and “yes” in any order that you like, generally the expert will be permitted to speak his piece and share his opinions.
“In liminie” simply means at the beginning.
In simpler terms, this all adds up to, “Hey, Judge, maybe we should think about this stuff before we’re knee deep in a problem. Why doesn’t the Court check out the expert’s qualifications before he prejudices (or bores) the jury. Let’s talk about this up front and have the Court decide.”
Voir dire, in this context, means that the side objecting to the expert’s methodology will question him before he is permitted to testify. They will ask him some things that will tend to show (or not) that the expert meets the Daubert criteria. The purpose of all this “truth speaking” then is to make sure that things are in a legal way all hunky dory. The expert has a real and substantial basis to have come to his conclusions and should (or should not) be permitted to share his or her insights with the jury.
Now, as a quick cautionary tale, “voir dire” can be used in other contexts as well, like “empanelling” a jury. But that’s another column. We’ll talk about “voir diring” a jury another time.
So at the end of the day in my case what this amounted to was that the defense challenged that the expert in question had no real basis upon which to scientifically found his opinions and wanted the opportunity to question him about how he arrived at them before the jury heard his testimony. Simple as; “Hey, Judge, can we have a minute or two at the beginning to ask a couple of questions?”
Well, why didn’t you just say so?
Briefs? I promised you. And I’ll be brief about it. At law, a brief is a written position or argument. Although known as “briefs”, they are often anything but, sometimes stretching to dozens (and sometimes dozens of dozens) of pages, often with attachments.
I wish I could recall who said, “Only lawyers would have the audacity to call a hundred page written argument a brief!”
Legal circumlocutions? Perhaps Shakespeare said it best in the churchyard scene of “Hamlet” where Hamlet, upon picking up a stray skull declaims to Horatio:
“There’s another; why may not that be the skull of a lawyer? Where be his quiddities now, his quillets, his cases, his tenures, and his tricks? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Hum! This fellow might be in ‘s time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries; is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures? The very conveyance of his lands will hardly lie in this box, and must the inheritor himself have no more, ha?”
Spoken, methinks, like a lawyer!
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, email@example.com or firstname.lastname@example.org