Robbins: A few legal terms explained | VailDaily.com

Robbins: A few legal terms explained

When I was a young attorney, I had a Visa card sponsored by the American Bar Association. The well-known scales of justice were poised beside the distinctive blue Visa logo. As I new lawyer, I thought that both it and I were sorta slick.

One day, my wife and I were buying groceries together. We tossed our this and that on the conveyor belt and when the sweet cashier gave us the tally, I lobbed my ABA Visa on the fruit and vegetable weighing scale at which the grocery conveyor belt ended, her scales and mine, forming a nice symmetry of sorts.

She smiled, said “thank you,” and then asked, “Where do you tend bar?”

That stopped me. All I could come up with was a “huh?”

She flicked a nicely manicured nail at the ABA imprint.  “American Bar Association?” she stated in exasperation.

Um … no. Just no.

The American Bar Association has not a whit to do with mojitos, Moscow mules, Manhattans, mimosas, or Margaritaville. Oh, my no. It has to do with … ah … the law?

No, not that kind of bar

Why then do we lawyer-types call ourselves members of the “bar?” I assure you, it has not a thing to do with heavy drinking. Instead, like much in American law, it goes back to the mothership, to Jolly Olde England and its musty legal traditions.

In its origins, “the bar” meant a particular place within the courtroom, a place occupied by the accused in a criminal proceeding. Historically, “the bar” was where the  prisoner stood at trial, which circumstance yielded the term “prisoner at the bar.”  “The bar” was a partition or railing (a bar, if you will) bisecting the courtroom, the intent of which was to separate the general public (or the “gallery”) from the space occupied by the judges, counsel, jury and others directly concerned in prosecution of the case. 

Over time, as traditions are wont to do, “the bar,” like some expanding protoplasmic ooze expanded, to signify “the court” itself, in its strictest sense, connoting the court sitting at full strength. In yet another sense, “the bar” has come to mean the collective of all the attorneys and counselors at law — all members of the legal profession. “The bar” is thus distinguished from “the bench” which body is comprised of the collective of all the judges and the judiciary.

Alas, when all those years ago I tossed my Visa on the scale of fruits and vegetables, it had nothing whatsoever to do with dingy pubs or knocking back a stiff one.

Perhaps I am misattributing it to Shakespeare. Maybe it was Will Rogers, Mark Twain or that giant of legal thinking, Yogi Berra? In any event, one of these philosophers once posited the keen observation that “only a lawyer could prepare a 500-page document and call it a ‘brief.’”

Touché.

But hold on a sec. Our industry is misunderstood.

No, not that kind of brief

A legal “brief” does not intend to mean it’s blunt, crisp, concise or pithy any more than “bare” means that an Ursus in the woods in naked. Although, come to think of it, I have rarely seen a bear — brown, black, Kodiak or Grizzly — with a stitch of clothes on, Yogi Bear’s hat, tie and collar excepted.

But, in any event, the term “brief” is misunderstood. At law, a “brief” is simply a written legal document used in various proceedings that is presented to the court arguing why one party to a particular matter should prevail. Although, strictly, a “brief” has nothing to do with being brief. In most courts, in most circumstances, there are indeed rules, regulations, and restrictions limiting how long the author of a particular brief can bloviate before the court.

More formalities

Why are judges properly referred as “Your Honor?”

Before getting on to this, I should note that there is a movement afoot in modern times where many lawyers refer to judges as “judge” rather than “Your Honor.”  While that’s not my style, I have never seen a judge appear to be offended by it.  Nonetheless, “Your Honor” it will be from my lips so long as I appear before the Court.

In short, “Your Honor” comes from ancient feudal practice. In its origins, calling someone “Your Honor” was a formal address for anyone with a title (knights, barons — Baron Trump excepted — etc.)  As lords, knights, barons, and the like largely fell away into the dustbin of history, the habit of calling judges “Your Honor”  simply persisted and became formalized over the years while it dropped away for other the titled people.

No, not that kind of bench

The bench.

Why are judges called “the bench?” If you’ve ever been in a courtroom you have observed that, more likely, the judge’s tush is seated in a cushy desk chair.

Does “the bench” then denote, as in sports, the depth of talented reserves? 

Um … no. 

Instead the answer harkens back once more to the geography of the courtroom. The term originates from where the judges parked their keesters which came, eventually, to denote the body of the judiciary itself.  Perhaps, in these days of more opulent judicial surroundings, the bench should be renamed the “executive desk chair” but so doing, I suppose, lacks a certain resonance and panache to say nothing about raining on the parade of tradition.

In law, old habits and old traditions persist. Like the aged wine my Bar Association card did not refer to, perhaps that, after all, is best.