Writing for Clients
Exercise
for Replace Latin with English
General
Instructions
For problems 1-4, you’ll be given an extract adapted from a memo sent to a client; each
extract contains one or more Latin expressions. Your task is to rewrite each extract in 21st
Century English, removing any needless Latin. (If you need to Google any Latin phrases to
learn their English equivalents, feel free to do so.)
Once you’ve drafted your restatement, you’ll be able to check your version against the answer we’ve provided. As there will always be more than one acceptable way to redraft each
extract, the answers and explanations we’ve provided are for guidance only. You may well
come up with something that’s even better.
There’s no pressure here: this exercise’s purpose is not to assess your knowledge, but to get
you thinking about how to avoid using Latin in your client writing whenever there’s no reason
for it to be there.
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Problem 1
Here is an excerpt adapted from an advice memo sent by a law firm to a client:
The reasoning in the counterclaim applies mutatis mutandis to the defense.
Rewrite this sentence to remove the Latin expression.
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Problem 2
Here is an excerpt adapted from an advice memo sent by a law firm to a client:
The sine qua non of copyright is originality. To qualify for copyright protection, a work
must be original to the author.
Rewrite this sentence to remove the Latin expression.
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Problem 3
Here is an excerpt adapted from an advice memo sent by a law firm to a client:
The purpose of section 17.2 of the bylaws is in ambiguo, but it appears to be mere
pro majori cautela.
Rewrite this sentence to remove the Latin expression.
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Problem 4
Here is an excerpt adapted from an internal research memo:
The ratio decidendi of the General Electric case was that the patent laws are in pari
materia with the antitrust laws and thus modify them pro tanto.
Rewrite the extract to remove the Latin expressions.
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Sample Answers
Problem 1
The reasoning in the counterclaim also applies to the defense.
There are a number of very good reasons to avoid Latin in any document intended for a client. Chief among them is that most non-lawyers don’t know any Latin, and they’re not paying
you to teach it to them through your legal writing. Using Latin terms gives the impression
that you don’t really know your audience, and that you’re too self-interested to write in an
understandable and relatable way. Latin terms also make your writing much less engaging;
it’s difficult to focus on what a document is telling you if you have to stop reading every so
often to research Latin phrases on Google, as a client would almost certainly need to do with
a term like mutatis mutandis.
Some traditionalists maintain that using mutatis mutandis is justified, in that the phrase’s
English equivalents are sometimes much wordier. True, the English counterparts to mutatis
mutandis sometimes tend towards the verbose: mutatis mutandis broadly translates as “the
necessary changes being made,” or “taking into consideration or allowing for changes that
must be made,” or “changed as needed.” But in most contexts where you might use mutatis mutandis, you can further simplify it, so it’s often entirely superfluous. For instance, you
don’t need it for a straightforward comparison where a reader is likely to intuit that two things
aren’t identical, as is the case here. Accordingly, we might simply have deleted it. But we’ve
chosen instead to replace it with also, to maintain the flow of the sentence and emphasize
the connection between the counterclaim and the defense.
The use of mutatis mutandis in the original version seems designed solely to impress the
reader with the writer’s intelligence. Sadly, its use here shows no sign of any thought about
its likely impact on the reader.
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Sample Answers
Problem 2
To qualify for copyright protection, a work must be original to the author.
Before exploring the rationale behind our sample answer, let’s look a little more closely at sine
qua non. Translated literally, it means “without which, none.” In legal parlance, it often references an indispensable or necessary condition. While many traditionalist lawyers and judges
cling fast to the term, its use in modern legal writing has grown controversial.
Bryan Garner, in his Dictionary of Legal Usage, favors using sine qua non. Garner says that
sine qua non “is common in both lay and legal writing and should remain unmolested by plain
English reform.” This is one point on which we must respectfully disagree with Professor Garner. His observation may have been true last century, when he originally penned it. However,
sine qua non is far less commonly used in non-legal writing, the further we progress into this
century. It certainly hasn’t achieved the prevalence of words like versus, alibi, or even quorum. And as sine qua non is neither a term of art nor a phrase in common use, you’re likely
to alienate at least a portion of your audience by using it.
As we’ve said often, always be aware of your audience—here, your clients. Quite simply, Latin terms make all your writing, but especially writing meant for clients, much less engaging.
And even if Professor Garner’s observation remains true today, and sine qua non is indeed
commonly used, the English equivalent will certainly be clearer to a layperson audience—and
probably to many lawyers, too. And while you may think that using English instead of Latin
removes some of the mystique from your legal writing, your non-lawyer clients will love you
for it.
The author’s likely reason for using sine qua non is that the term appears this way in the case
the author relied on for the point about originality. Fashioning your writing after judicial opinions and other authorities is virtually always a mistake. Many of the cases you’ll research will
use Latin, as well as antiquated legal English. Your role, in writing to 21st Century clients, is
to translate these into words a modern audience can easily understand.
So why did the sample answer simply delete the first sentence? Take another look. The
original’s second sentence essentially repeated the first—which, of course, it needed to do
because of the Latin in the first sentence, implicitly acknowledging that the client probably
wouldn’t understand sine qua non without some explanation. In that case, why use the Latin
at all? Why not simply say what you mean, in plain English? In that spirit, we chose to keep
the sentence that says what we mean, but without the Latin. But if you wrote something like
“Originality is a necessary condition for copyright protection,” or “Originality is a prerequisite
for copyright protection,” then you did well, as those are good answers, too.
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Sample Answers
Problem 3
The purpose of section 17.2 of the bylaws is unclear, but it seems to have been included
only as an extra precaution.
The original extract boasts two Latin expressions—and they both amount to little more than
showing off. In On Language and Writing, Bryan Garner notes that, after many centuries,
Latin has lost its stranglehold on legal writing; only a small number of Latin phrases remain in
use. Only rarely, he says, do lawyers use Latin phrases that haven’t been thoroughly naturalized into modern English usage. Neither of this extract’s Latin phrases have been thoroughly
naturalized, nor are they indispensable terms of art like prima facie and alibi. Instead, their
sole purpose seems to be to demonstrate to the client just how intelligent the writer is. The
client’s response is likely to be quite different, and may involve naughty words in far more
common use than the obscure Latin the lawyer has used.
Fortunately, the Latin phrases here were especially easy to remove. In ambiguo can easily
be replaced with “ambiguous” or “unclear.” Pro majori cautela means “for greater caution”
or “for additional security,” although “as an extra precaution” does the job just as well or
even better, especially for the modern English-speaking reader. In any case, we see that the
English equivalents are perfectly clear to your client readers, so why not use them instead?
Incidentally, we’ve also replaced “mere”—not because of its Latin root (though it is a modern
English word), but just because it sounds pompous. Avoiding pomposity is something we’ll
explore later in the course.
In closing, remember the guidance the lesson gave you: if your clients actually are Ancient
Romans, go ahead and use Latin. If not, use it only when it’s either unavoidable as a true
term of art or so widely understood that it doesn’t look like you’re writing in the language of
the dead.
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Sample Answers
Problem 4
The General Electric decision’s rationale was that the patent laws concern the same
general subject as the antitrust laws, so the two should be construed together. This
means the patent laws modify the antitrust laws to some extent.
The original extract contains three Latin expressions. None are terms of art or in common
use, which means their use here is completely indefensible.
Literally translated, ratio decidendi means “the reason for deciding.” In Modern Legal Usage,
Bryan Garner points out that this term can refer to one of two related things: the rule of law
on which a court says its own decision is founded, or the rule of law on which a later court
thinks a previous court founded its decision. So while the term ratio decidendi is basic to the
common-law system of precedents, it’s more than a little ambiguous. All this gives us two
very good reasons to avoid using ratio decidendi in writing meant for clients: that ambiguity,
plus the fact that ratio decidendi is a fairly arcane Latin term, which is likely to leave non-lawyers scratching their heads. In this context, it can easily be replaced with the much clearer
“the reason for the decision” or, as we chose, “decision’s rationale.”
Moving on, Garner refers to in pari materia as legal jargon, and the simple word “jargon”
is a clear warning to avoid it. In pari materia literally means “on the same subject.” In legal
parlance, the term often references a situation where two statutes covering the same subject
are construed together. To eliminate in pari materia, the sample revises the original excerpt
to say essentially this, but in plain English.
Now for pro tanto, whose literal meaning is “for only so much.” Pro tanto is arguably a term
of art in some contexts. For example, a pro tanto defense is, essentially, either:
• a defendant’s counter claim against a plaintiff that, at most, may offset some or all of the
requested damages, and cannot provide affirmative recovery; or
• a defense, like comparative negligence, which merely mitigates damages, rather than furnishing a complete defense.
However, that’s not the use here. In this context, pro tanto can easily be replaced with the
much clearer English equivalent “to some extent.”
But this extract comes from an internal memo. Surely, using Latin expressions is fine when
writing to other lawyers—right? Before you rush to say yes, think back to the tutorial Client-Focused Legal Writing. Sometimes passages from the best internal memos find their
way into documents sent to clients, which means that everything you write really should be
as client-ready as possible. So when it comes to Latin expressions, the same rule applies
both to internal documents and to client writing: use Latin only if you have no other choice.
Note: We need to credit Professor Richard Wydick, and his 1978 work Plain English for Lawyers, for inspiring the content of this problem.
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