18 October 2007

Why do we change the names?

An argument I had with defense counsel yesterday started me thinking about a strange thing that happens in legal terminology: the tendency of legal language to migrate toward obfuscation.

I had to prove that a person can be guilty of a misdemeanor as a principal in the second degree; he can't be an accessory and usually can't be convicted of conspiracy (there are statutory exceptions), but can be a principal in the second degree. The issue is so well settled that when I went to get a case to prove the issue the primary case was Hodge v. Winchester from 1929. The only bit of difficulty is that the case referred to "aiding and abetting" rather than being a principal in the second degree, which took a little bit of explaining.

Thinking about this, I started to wonder why in the world you would stop using a descriptive phrase "aiding and abetting" in favor of a phrase that is meaningless unless you either have training or have spent the time researching what "principal in the second degree" means. I can remember talking to clients about this concept when I was a defense attorney and I almost always had to switch to the "aid and abet" language for them to understand it.

Of course, there is an argument in favor of certain obtuse terms. Terms of art can be necessary because they are more precise. There is also a preference to keep language consistent so that meanings are understood. However, I don't really think that these are the reason for most of the obtuse language we use.

I suspect that most of the time obtuse language is used because that is what the lawyer has been trained to use and it's just easier for us to keep using the language once we've learned it. An example of the tendency to continue using the same language even after it has become improper is the continued use of lawyers and judges and lawyers in Virginia of nolle prosequi. A couple years back nolle prosequi in Virginia meant dismissed without prejudice while "dismissed" meant dismissed with prejudice. It had been so since the beginning of time. However, someone who hadn't been taught this in law school made a motion to dismiss when he should have made a motion for nolle prosequi and a case was lost. Consequently, the General Assembly changed the law. Now, per 19.2-265.6, a dismissal is not permanent unless it is a dismissal with prejudice. Effectively, this has made nolle prosequi and dismissal the same thing. However, none of the paperwork has been changed to reflect "dismissal with prejudice" and I've not yet seen a single defense attorney ask for it; they just keep asking for dismissal, expecting the same result and protections their clients received before. Personally, I believe a system wherein the two options are dismissal without prejudice or dismissal with prejudice as options is better than one that uses Latin and I think that's basically where we are now at. However, the courts and lawyers have not adapted to this changed reality.

Now, don't get me wrong, while I think the new language supra is less obtuse, it is the exception which proves the rule and it wasn't put in place by the General Assembly to make the language more understandable, it was done because someone lost a case on a technicality. In general, even common sense changes aren't made. Why do we use "capias" in Virginia rather than the more understandable "bench warrant?" More generally, why are lawyers the only people in the entire world that use impracticable to mean "not practical" when its synonym impractical is used by everyone else and carries the exact same meaning? It isn't because the terms are more precise, or because they are more understandable, or because they have magical powers (although, they can be fun to use in certain circumstances). Mostly legal language doesn't change because of inertia in the legal system and habit of the lawyers and judges.

Still, that doesn't explain the change from "aid and abet" to a more obtuse phrase. I must be missing something. Anyone got an idea?


Anonymous said...

Take this as rumor:

I've heard that the many cases where the legalese is "x and y" (as in "aiding and abetting" arises from trying to cover the bases in both English common law and Napoleonic law.

I note that in this case, though, both "aid" and "abet" are most recently from Old French.

Ken Lammers said...

I think that those are derived from the the mixing of languages in the UK (Saxon and Norman?). The habit of doubling (or more) of what is being said came from using the appropriate word from each language. Wills are terrible for this. How many times have you seen a will in which "I John Smith give, devise, bequeath, and will my XYZ to . . . " Yes, devise and bequeath technically have different meanings, but there's no need for all the repetition; I think most courts would even recognize devise and bequeath as meaning the same as the other. i.e. if the will bequeaths both realty and personalty it's unlikely the court will not glean the intended meaning by context and act appropriately.

Brent said...

Being a police officer who has spent a good deal of time in court I've managed to pick up on the language of lawyers and the law. I think it should be changed, dumbed down. Not for stupid police officers, but for the public. Especially those who tend to spend quite a bit of time in court as defendants. Face it, they don't understand it. I was once told by a defense attorney that it would never be changed so the public could understand it because then there would be no need for attorneys. Job security, eh?