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Wednesday, February 17th, 2016 technology  research  practice

A Research Tip

  • Research & Writing

Bryan Garner, editor of Black’s Law Dictionary and a legal writing expert, recently blogged on the exciting topic of when italics should be used for Latin words and phrases and when they can be in roman (plain) type. It must have been a slow day in the blogosphere.

His ‘fuzzy rule’ is that you can skip the italics when the word has become fully naturalised into English. So, ‘habeas corpus’ and ‘prima facie’, but ‘sensu stricto‘ and ‘in pari materia‘.

In a waspish mood, I left a comment on Garner’s blog, asking whether it wouldn’t be better to write ‘strictly speaking’ and ‘on the same subject’ for the last two of those, since our clients don’t generally converse in Latin.

Mr Garner doesn’t seem to have liked the comment, because it is still ‘awaiting moderation’ months later – but I stand by it.

If you’re acting for the Vatican or writing for an audience of learned monks, Latin is fine. Otherwise, use it only when it’s absolutely unavoidable or so widely understood that it doesn’t look like a dead, foreign language.

Lawyerly use of Latin has its pitfalls too, if you get things wrong. US lawyers use scienter as a noun (‘degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; the fact of an act’s having been done knowingly, esp. as a ground for civil damages or criminal punishment’: Black’s Law Dictionary, ed. B. Garner). But scienter is really an adverb (‘knowingly’ or ‘skilfully, expertly’).

Better to stick to the language you and your readers know than to try looking all edjumicated.

Next week: banish business jargon

Neil Guthrie (@guthrieneil)

3 comments on Lose the Latin

  1. A. Lawyer says:

    It’s spelt “edumacated”.

  2. John G says:

    I agree – and the Ontario statutes banished ‘prima facie’ among other latinisms in the 1990 revision.

    I don’t think it’s a fair criticism – and you didn’t quite make it – to object to the use of ‘scienter’ as a noun when in Latin it is an adverb. The US legal term uses it as a shorthand description for a whole doctrine. So the point is that the word is the most visible or memorable in the phrase, not that it must be used as the same part of speech in its transferred sense.

    Would you object to someone referring to a ‘de minimis’ defence, though the phrase comes from a very different grammatical structure? I would think not, because everyone (every lawyer – but a lot of lay people too) knows that it’s shorthand for a particular argument.

    Do you italicize ‘e.g.’ and ‘i.e.’? I think that would be pretentious. I read a book by an otherwise reputable author lately that italicized ‘a.m.’ and ‘p.m.’ I thought that was pretentious to the point of plain wrong. It bothered me every time I saw it.

  3. Neil Guthrie says:

    My point is that there is a risk of getting things wrong in a more serious way when using a language one doesn’t actually know (apart from some phrases here and there). I see ‘de minimus’ more often than the correct ‘de minimimus’… I would italicize ‘e.g’ and ‘i.e.” (but not ‘a.m.’ and ‘p.m’) — but I avoid them and say ‘for example’ and ‘that is,’ instead.

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