In this lesson, we will explore two areas that are unique, or somewhat unique, in the area of legal writing. And that is legal terms of art, and figuring out what those are and what that means, and also the role of consistency in legal writing. So let's get right to that. What exactly is a term of art?
Does it involve an easel or a painting? like the one you see here. In fact, no. What this refers to is that in law, like other specialized fields, say, think of medicine, for example, certain words have specialized meanings, and people who are trained in that area typically understand the specialized meanings. Now, there's really two flavors that I'd like you to think about in legal terms of art. because some specialized terms are recognizable words.
They're used by people outside of the field. Here, however, their legal usage often differs from the common usage, so it becomes very important to understand what the legal meaning is. Let me give you a couple of examples of those types of terms. Negligence.
Most people know that there is a legal concept of negligence. But people will throw the word around to mean all sorts of things of minor levels of carelessness that might not actually fit within the literal legal definition of negligence in tort law. But it's not an unfamiliar word, yet in legal usage, it is a term of art that you would want to be careful about using correctly.
Likewise, partnership. People talk about partnerships where there's Two individuals who are wanting the same thing, they've maybe committed their lives together in some way, and so they're said to be in a partnership. But in the law of business organizations, partnership refers to a particular class of entities that are called partnerships, maybe general partnerships, limited partnerships, and the like. And there the partnership is referring to something.
that has a legal existence of sorts outside of the individuals. So once again, it's an example of a term that has non-legal usage, but that has a term of art connotation as well, and you would want to be aware of it in dealing with the law. How about assault? Assault can refer to any sort of attempt or an attack.
on a person, again, in its common usage. But it turns out that assault has a particular meaning, once again, in tort law, where there are elements that must be met in order to prove assault. Judgment. We talk about people exercising good judgment and bad judgment all the time in everyday language. But in litigation, in civil procedure, there is a thing called a judgment that is a determination.
of a matter, usually a cause of action, that is before the court. A case will result in a final judgment. In some areas, as we've seen in other modules, there can be the grant of a summary judgment. What all of these things have in common is that they resolve a major issue that is before the court. And that sort of a judgment is a different thing from the characteristic of, let's say, having good judgment or making reasonable decisions that will often mean in everyday language.
Motion is another area that has a legal term, and we've already seen this one previously, but we know that a motion in law is a particular request that's brought before a court seeking some kind of relief from the court, usually in the midst of existing litigation. Motion, of course, has a different meaning in, let's say, physics. and science, and people in general understand what motion refers to, but that's something different from its legal usage. And then a final example is excuse. We all know about making excuses as a non-legal matter, but in the law, excuse can be a doctrinal area, such as in contract law, there are types of excuses that will let people out of performing, or at least delay performing, their contract without them being in breach.
And we call those excuse doctrines. So once again, a piece of everyday language has been commandeered into a special usage in the law, and so we want to be careful about those terms of art. Now, our second flavor of terms of art is specialized terms that really aren't known outside of the legal field, or most people don't use these in everyday language.
And a couple of examples of those are force majeure. Force majeure is a description, it's from French, that means superior force. And it refers to a particular kind of clause in a contract. that allows parties to be excused from performance. So when parties plan for this, it is a force majeure event, and the contract will often specify these are the types of things that would let you out of performing the contract.
Perhaps a government order that forbids performance in some way, that would often be involved in force majeure. Likewise, in tort law, there's a doctrine known as res ipsa loquitur. From the Latin, literally means the thing speaks for itself.
And you couldn't call it the doctrine of things speaking for themselves. It is something that is specific to tort law in the area of proving causation. And there are certain situations where in bringing a tort claim, a party might not have to prove direct causation. And that's because of the doctrine of res ipsa loquitur.
which essentially holds that in certain defined circumstances, there can really only be one cause or one type of cause, and therefore we must have liability here. And so you don't have to prove causation necessarily as a separate element. Likewise, there is a term known as estoppel, and estoppel comes in many flavors, but essentially estoppel refers to any situation where a party is...
cannot go back on something that it said earlier, even if it normally would have a legal right to do so. We say that the party is estopped from claiming the benefit of certain law, like perhaps the statute of frauds or the requirement of consideration in contract. And estoppel can come in a lot of different areas.
Contract law is most commonly associated with promissory. estoppel, but there's a broader field called equitable estoppel, and that means in some places and times, we just think it's not appropriate to let a party go back on its word, even though normally that would be possible for it to do. Something you'll be familiar with by this point in the course is a concept called jurisdiction, and that's not in people's everyday vocabulary. Jurisdiction, as we've seen, refers to the description of the authority of a court to handle a matter in a particular geographic area or perhaps covering a particular subject area or even more commonly, both of those things.
So jurisdiction is a reference to powers of the court. Then in real property law, there's a concept known as fee simple absolute. And if you have ever owned a home, let's say, you may well have owned it in fee, simple, absolute.
Well, what exactly does that mean? It really just means that a person owns real property without it being subject to some sort of future interest or divided interest in the property. You might think of it as owning property outright without there being anyone else. who has a claim to it, and that refers to ownership in fee simple absolute.
Then back to contract law for one more example, liquidated damages. They have nothing to do with water, but they refer to anytime parties have agreed in a contract in advance to calculate their damages in a particular manner or perhaps put a number on it, if you will, liquidate it into a specific amount. amount, then that is called a liquidated damages clause.
And once again, what all of these terms have in common is that they really aren't known outside of the legal field. But because they are terms of art, whether they're familiar ones or unfamiliar ones, you have to be very careful in drafting or even reading a legal document to understand how the term of art is used. and make sure that you are understanding the concept in the right way.
And that's part of the value of a legal education. Let's move from the concept of terms of art into a broader question. When you're writing a document in the law, should you put it in your own words?
And there actually isn't a simple answer to that. There are places where paraphrases are useful, but in general, When you're describing the law itself, you absolutely should not put it in your own words. Unfortunately, many students in law school have trouble with this concept.
And one of the reasons is because most people's academic experience prior to getting into legal education has involved creativity being demanded and, in fact, being rewarded. You were always told. Don't repeat something you've heard elsewhere.
Put it in your own words. And this sort of creativity often extended into the use of vocabulary and the problem of elegant variation that we'll get to in just a moment. But what you need to know here for our purposes is that legal writing, especially the drafting of contracts, which is something you may be involved in at some point, that that type of writing requires consistency, not creativity.
You do not want to put things into your own words. So the overarching principle that I want you to keep in the back of your mind, because it's an easy phrase to remember, is say the same thing the same way. Because when you change it up, problems arise.
So let me tell you what I mean by that. I mentioned the concept of elegant variation, and I want to use a quote from Deborah Basho in the Aspen Handbook for Legal Writers. Professor Basho says, elegant variation is deadly in legal writing.
Well, I hope that grabbed your attention. It can be deadly. Let's see conceptually why that's true.
For example, if you're reading a document that continually refers to the owner of property and as the landlord, and then suddenly refers to the lessor, you would be correct to assume that the newly introduced lessor is not the same individual as the previously described landlord. And I might add, that's even though those terms potentially, at least as concepts, could be synonymous with each other. But when a document switches from one to the other, then the implication is, and this will always be true in legal writing, is that we mean to refer to two different people.
So to go on with this, be cautious, Professor Bichot says, about varying words and terms used in legal writings. Although you may believe, listen to this part, you may believe that selecting alternative terms shows your extensive vocabulary and lends interest to the document, you unintentionally may be creating the impression that there is a reason that different terms have been selected and that there is a legal distinction to be drawn based on this variation. Here's the problem.
If you change up the words, your reader in a legal context will assume that you had a reason for doing so, and that therefore the terms are not referring to the same thing. Now let's see how that plays out in court. We've got two examples for you here, one out of the Seventh Circuit Court of Appeals, a federal court that sits in Chicago. The court said this principle of contract interpretations, we're talking about reading a contract, parallels the principle that we use when interpreting statutes to determine the intent of legislatures.
So, Remember, we spoke about statutory interpretation earlier in the course. It turns out contract interpretation has a lot in common with it, including this. We assume that the same words have the same meaning in a given act, and that the choice of substantially different words to address analogous issues signifies a different approach. Put another way, if you are not consistent, courts will assume you are intentionally being inconsistent because you didn't want to say the same thing. One more example of this from the Southern District of New York, another federal court that's dealing with a construction industry case.
The court there said, sophisticated lawyers. such as those drafting standard forms to be used by the construction industry, and I could add, in just about any industry that uses standard forms, these lawyers must be presumed to know how to use parallel construction and identical wording to impart identical meaning when they intend to do so, and how to use different words and construction to establish distinctions in meaning. And what was going on in this International Fidelity Insurance Company case is one of the parties was claiming that two different uses of terminology that were very close to each other, that those actually meant the exact same thing.
And as you can see, the court rejected that argument and went even further to say any sophisticated lawyer would know this is true. I say all that to leave with you the admonition. Say the same thing using the same word.
And let's conclude this with one example of the problem. Here's a passage talking about an agreement, or a contract we might say, that the parties have. Here's the language.
Under the terms of the contract, the defendant was obligated to deliver the goods to the plaintiff. The agreement also provided that the materials would be insured. Finally, the party's understanding was that the items should be delivered within 10 days.
Okay, this is a travesty of elegant variation. Let me add a little annotation here to it, and you can see the single underlined parts are all referring to, or they're meant to refer to, the same thing, and that is also true of the double underlined parts. So contract, agreement, and understanding are, in this writing, intended to talk about the same particular. contract. Here's the problem, and here's why that creates confusion and ambiguity.
In addition to the reasons that the court said, it turns out that the word contract and the word agreement actually have different legal definitions, including in the Uniform Commercial Code that you'll learn about in a course on contracts. And so if those terms have different legal meanings, they're literally legal terms of art, we don't even have to know what the contract is. even know where understanding fits in there. Is that meant to be something informal?
Is it something that's not in the document? And so regardless of that, if this writer is intending contract agreement and understanding to mean the same thing, what she ought to do is use the word contract every time, or even agreement every time. Just stop changing it around.
Same thing with our double underline word. The subject of the contract, it's first called goods, then it's called materials, and finally it's called items. And in a legal context, a reader who is legally literate will assume that those are referring to different things. If you mean that we mean the same goods, that those are also the materials and they're also the items, you need to pick one of these terms.
And I'd probably go with goods here just because, again, that has a legal definition of things that are tangible and movable. So we'd say deliver the goods, the goods would be insured, and the goods should be delivered within 10 days. And that way we know that we're not talking about three different things. If we don't use the same terminology in the same way, we are by definition, in a legal context, going to create confusion and ambiguity. So that brings us to the wrap-up.
What have we learned here in this lesson about legal terms of art and consistency? First of all, when a word or phrase has taken on a special legal or transactional meaning, like it's used or defined a certain way in a contract, then it is a term of art. And terms of art should not be replaced with any substitute term. Keep them in place because they already, if you will, have legal terms. legal baggage walking around with them.
Second, we learned that legal terms of art come in two types. They can be words mainly used by lawyers, such as res ipsa loquitur, the tort doctrine, or they can be common words that have a specialized meaning in the law, like partnership. In either situation, you should not change those words out because they come with specific baggage and you want to keep the same baggage with that word.
And so the ultimate principle we're rallying against here in this lesson is that we're against elegant variation because changing up terms can cause confusion and ambiguity in legal writing. It undermines its certainty. So the better approach, whether for you or whether for a lawyer who's working on a transaction that you are involved with, is to keep referring to the same thing. to the same thing in the same way.
So I hope that you've learned a lot in this lesson about legal terms of art and consistency.