Posted by: johnocunningham | September 18, 2015

Ten Hilariously Misused Legal Terms

I was watching television the other night and noticed the use or misuse of several legal terms. It was amusing to see people doing “man in the street” interviews who were attempting to talk in “legalese” despite obviously not being lawyers.

Lawyers take a lot of criticism for speaking in the terms of the trade, yet so many people try to imitate them without success.

So here is my blog post on commonly misused legal terms with explanations of correct useage and origin:

  1. Moot point. When an issue is not determinative of an outcome, it is said to be a moot point. It is not a “mute” point, as so many people say, and it does not refer to something that is quiet or unspoken.
  2. Per se. This means literally “by itself” but in legal use may have other meanings, as in the case of negligence per se, which is a kind of “automatic” negligence when one violates a statute designed to protect the public. Hilariously, some people just seem to sprinkle their language with random “per se” references to sound lofty. It does not work. You don’t sound smart when you say “I’m not accusing him of lying per se, but just generally being untrustworthy.” Note to self: also avoid the confusion of “per se” and “pro se.”  Pro se is a term roughly translated as “for oneself” as in the case of someone who represents himself in court and is considered a “pro se” litigant. It is not appropriate to state: “I am not a doctor pro se, but I do have medical training.”
  3. Pro forma. I often hear someone say that something is just “pro forma” when referring to a document or an administrative act. The phrase can be literally translated as “for the sake of form” but that is not how it is used by professionals. Generally speaking, lawyers and accountants refer to “pro forma” statements as “forward looking” or “predictive” statements, such as “pro forma” financial statements, which are nothing more than projections based on assumptions. By the way, the phrase is not “per forma” either, though I have heard that too.
  4. Blue Sky. From time to time, I hear people say that “we can just blue sky this thing” as if to say, we can make it public or we can clarify it for public consumption. Sort of close, but not quite right. The phrase actually came from Judge Louis Brandeis in speaking about the purpose of disclosure laws related to securities (stocks and bonds). He said the purpose of the law was to make things as clear as the blue sky for investors. Thereafter, state securities laws (as opposed to federal) became known as “blue sky” laws, and that is the blue sky to which lawyers are generally referring in practice.
  5. Tortious. If someone’s conduct is negligent, destructive or defamatory, lawyers may refer to it as “tortious” conduct. I have heard people refer to this as “torturous” or “tortuous” in trying to sound legalistic. The word “tort” means twisted, and don’t ask me how it came to mean “legally culpable” but it did. Sorry, no relation to torture (unless you negligently or deliberately torture someone).
  6. Fiduciary. This can be a noun or adjective. A fiduciary is someone with a fiduciary obligation to another, such as an investment adviser who is a trustee and owes a trust beneficiary a fiduciary obligation to act in their best interests with the highest degree of diligence and caution. I once heard someone introduce his close friends as his “fiduciaries” and I have heard people refer to their “fiduciary” actions when they meant “responsible” actions. Again, close, but not quite.
  7. Due diligence. I have heard people say “let’s do diligence” on the this deal, or “it is no big deal, it is just due diligence.” I am not sure what they were trying to convey, but I am pretty sure they picked it up from lawyers. Attorneys use the term to describe the work necessary to protect a client being represented in a transaction. For instance, “we have to perform environmental testing on properties the client wants to purchase as part of our due diligence.”
  8. Due process. The phrase is not “do process” although I have heard people say that we need to “do process” on a transaction or a dispute resolution. Due process refers to the type of process in a trial or hearing that will guarantee fundamental fairness to the parties, and most importantly to the defendant or the accused in any controversy or proceeding.
  9. Hearsay. I think many people use this term interchangeably with the word “gossip” but it has a more technical meaning. Hearsay refers to “an out of court statement offered by a party as evidence to prove the truth of the matter asserted in the out of court statement.” There is a rule against using hearsay evidence not because it is gossip, but primarily because the person who allegedly made the out of court statement may not be available for confirmation or cross-examination regarding what they meant (or if they even said it). There are also more than two dozen exceptions to the hearsay rule, so hearsay is often admitted into evidence where there are sufficient indicators of its reliability and authenticity.
  10. Statute. There is a statute of limitations, but there is no “statue” of limitations.  Legal statutes are written laws passed by the legislature (as opposed to administrative regulations that have the force of law, but are passed by agencies empowered to act by legislatures). There no legal statues, except those erected in the town square pursuant to duly authorized and publicly funded actions.

If you work with lawyers, and want to understand their language and concepts, I offer courses in “decoding and demystification of law” (for legal marketers and other providers who must work regularly with the legal profession).

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