Trite Law

To a layperson, trite means ‘hackneyed’, ‘worn-out from over-use’, ‘lacking freshness’ – as in Greetings cards are filled with trite expressions of cloying sentiment.

To a lawyer (or a law student after about 4 weeks into 1L), trite law means any legal principle that is ‘obvious or common knowledge’ (in the words of that unassailable authority, the Wiktionary).

The expression trite law has an ancient pedigree. Its origins go back to T Pasch’s case (1478) YB 17 E4 Pasch fo 2 pl 2, where Brian CJ says that ‘it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is’ (cited in R Haigh, ‘“It’s Trite and Ancient Law”: The High Court and the Use of the Obvious’, (2000) 28 Fed L Rev 87 at 87 – although Haigh translates the original law French).

In Canada, judges seem to be fond of this particular old chestnut: a search of CanLII yielded nearly 7,000 hits; in the Canadian subscription databases, the figure is closer to 10,000. The phrase is less popular with US judges: not quite 400 hits in the US version of Westlaw.

What does this suggest? Obviously, that the phrase trite law is itself trite, hackneyed, devoid of freshness, lacking in novelty (although less so in the USA). A good reason, then, to stop using it.

Another reason to drop trite law is that it is, in Richard Wydick’s phrase, one of those expressions that lawyers (and wannabe lawyers) use to give their writing ‘a legal smell’, but which mean little to a non-lawyer – and may, more dangerously, ‘give a false sense of precision and sometimes obscure a dangerous gap in analysis’ (Plain English for Lawyers, 5th ed (2005), at 58.

Don’t tell your client something is trite law; tell her that it is well-established that … Your advice will be more meaningful.

And less trite.

–Neil Guthrie (@guthrieneil)