Vail Law column: The lyricism of the law
I love the language of the law. Despite the inexorable erosion by the common-English movement like a tide against a shore, there is a certain cadence and rhythm, like the play of the Shakespearean tongue laid against the modern.
What a world of difference between “To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man” and the more direct, “Be who you are.” But, alas, I rhapsodize …
Still, as a law and its cadences evolve, we view the old ways of phrasing and shaping an argument the way that we admire handcrafts and antiques; with admiration and self-congratulations at the advances we have made. Yes, yes, plain language has brought the law to the masses — and that is a good thing for the law must be constructed of the common currency — but at least the burnish of the eloquence of yore is lost.
Consider a few gems.
A “chose in action” is one of my favorites. A “chose?” Indeed.
A “chose in action” is a comprehensive term used to describe a property right or the right to possession of something that can only be obtained or enforced through legal action. It is used in contradiction to a “chose in possession,” which refers to cases where title to money or property is in one person but possession is held by another. Examples of a chose in action are the right of an heir to interest in the estate of his or her decedent; the right to sue for damages for an injury; and the right of an employee to unpaid wages.
It is an intangible personal property right recognized and protected by the law, that has no existence apart from the recognition given by the law, and that confers no present possession of a tangible object.
It is essentially a right to sue. But how much prettier for the orator to hold a “chose in action” on his lips than to say, “My client’s gotta right to sue.”
Then there’s Latin
Another beauty is the familiar “ipso facto.” Maybe not thrown about in “Law and Order CI” like it was in “Perry Mason,” ipso facto means by that very fact or act; as an inevitable result. The enemy of one’s enemy may be ipso facto a friend. “He punched him in the nose, ipso facto, his nose broke.
“Res ipsa loquitur” is another fave and implies the principle that the occurrence of an accident implies negligence. It means literally, “the thing speaks for itself” and articulates a doctrine of law that one is presumed to be negligent if he or she had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence as, without negligence, the accident would not have happened. Say, for example, a stack of roof tiles on a building falls and injures someone below. Even if no one witnessed the tiles fall, the contractor who stacked them may be liable.
An especially lyrical phrase is that of “ipse dixit.” Admittedly, I’ve encountered this particular beauty precisely once in my career. It was in a federal courtroom on Cinco de Mayo many years ago, and rather than quaffing cervesas, we were butting heads over issues of rubber chemistry and product liability.
“Ipse dixit.” Now there’s a term only a mother’s tongue could love. Provided that the mother tongue was Latin. What is means, literally, is “he himself said it.” It is a bare assertion resting on no authority other than the individual holding forth what was said. Now, most people, I presume, would be more straightforward in their daily dealings, saying something like “there’s no support for that.” But something would be lost in that. Stating that, instead of “ipse dixit,” wouldn’t cause a pregnant pause or stop the breathing in a courtroom.
In my particular case, I found the gem, buried like a landmine, or perhaps more accurately, poised like a rattler in tall grass. The lawyer had written that the conclusions of a testifying expert should be discounted, “ipse dixit!” I thought, “I gotta write that down; I’ll wedge that into a column someday!”
Still more Latin
How about “voir dire,” which, in its literal translation means “to speak the truth,” or “in liminie,” which means at the threshold or at the beginning? One can torture “voir dire” into a verb, holding that, “We will proceed to voir dire the jury” which simply means to question the jury for fitness to serve or for prejudice. An “in liminie” motion is one offered to the court before the fireworks of trial kick off. An in limine motion is one brought at the threshold of proceedings.
Lastly, there is “nunc pro tunc” which, to me at least, bounces on the tongue like a superball on a glassy surface. What it means is “now for then” which at first seems more than a bit unhelpful. In context, though, what it imparts is that a court ruling “nunc pro tunc” applies retroactively. If a court rules “nunc pro tunc,” then the order applies backward to an earlier date.
You may not share my enthusiasm for the disappearing color of the law, this eloquence, these crafty devices and legal circumlocutions. But to me they impart a brilliance that is quickly fading if not lost entirely beneath the bulldozer blade of legal reconstruction in the common tongue.
In Shakespeare’s Hamlet, upon picking up a stray skull, Hamlet 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 his 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 Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business and commercial transactions, real estate and development, family law, custody, and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, Robbins@SLBLaw.com.
Support Local Journalism
Start a dialogue, stay on topic and be civil.
If you don't follow the rules, your comment may be deleted.
User Legend: Moderator Trusted User