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The use of legal Latin is dying in the courtroom as speaking and writing in “plain English” gains steam in the legal profession.

Some legal scholars applaud the trend.

“Latin is a dead language. And it should stay buried,” says Judge Mark P. Painter an appeals court judge in Cincinnati, and author of “The Legal Writer: 40 Rules for the Art of Legal Writing.”

On the premise that eliminating Latin makes the law more accessible, Painter does not allow his law clerks to use legal Latin, and discourages attorneys in his courtroom from using it.

Eliminating Latin makes the law more accessible, Painter says.

“We’re not just writing for judges and lawyers,” the judge says. “Cases are about people, and people should be able to figure out what happened in a case.”

His advice to lawyers: “Anytime you’re tempted to put Latin in, don’t do it. Just get rid of it.”

For all of his tough talk, though, Painter has been known to show mercy. He says it’s acceptable to use terms that have worked their way into everyday English, such as habeas corpus.

But not everyone agrees legal Latin should be consigned to the dusty tomes of old.

Milton Hirsch, a Miami criminal defense attorney and collector of antiquarian law books, uses Latin frequently in court.

“The use of Latin,” Hirsch says, “contributes to the law’s sense of continuity as an unbroken enterprise of thought, and it gives law force and vitality.”

Bryan A. Garner, editor in chief of Black’s Law Dictionary and author of “Making Your Case: The Art of Persuading Judges” with U.S. Supreme Court Justice Antonin Scalia, says the decline in actual usage of legal Latin is a good thing overall.

However, Garner laments that more lawyers are not learning Latin so they can read older texts.

“It’s good for lawyers to know these things, but there’s no reason to use them,” he says.
Because most lawyers misspell or misuse Latinisms, abstaining is better than mangling the useage, Garner says.

Garner, who took over as editor of Black’s in 1994, says the current edition contains 62 pages of Latin maxims and legal principles from Roman and English law.

Over the years, he eliminated from the dictionary many “Latinisms” that were erroneous or unverified.

But, showing he doesn’t hold an ancient grudge against the language of the Caesars, he has also added dozens of Latin terms that have appeared throughout American and English law, but had not previously been in Black’s.

Legal Latin: What’s in and out

As in fashion, with language one day you’re in, the next day you’re out. According to Bryan A. Garner, editor in chief of Black’s Law Dictionary, a Latinism should not be used if there is a succinct English substitute, unless the Latin phrase is a legal term of art.

Here are some examples of phrases that are “in” and “out” of legal fashion, according to Garner.

In habeas corpus: “you have the body,” used to describe written orders for bringing someone into a court, most frequently related to ensuring a person’s imprisonment or detention isn’t illegal.

res ipsa loquitur: “the thing speaks for itself,” denoting a rebuttable presumption of negligence.

respondeat superior: “let the superior make answer,” meaning a principal or employer is liable for the acts of an agent or employee within the scope of agency or employment.

corpus delicti: “body of a crime,” meaning physical evidence of a crime and objective proof a crime has been committed, often mistakenly used to refer to the victim’s body.

Out

Arguendo: use “for the sake of argument”

inter alia: use “among other things”

ceteris paribus: use “other things being equal”

sua sponte: use “on its own motion”

ab initio: use “from the beginning”

vel non: use “or not”

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com

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