Why does the word “attorney” sound more prestigious than “lawyer”? That is the sort of question that four authors explore in a well-written book entitled Lawtalk.
This is not a dictionary: fewer than 100 words and terms are explored. But each entry gets considerable attention: an essay with worthwhile discussion of its origin, development over time and current usage.
The writing is not academic, though the authors have solid backgrounds in the academy. The writing is not exactly casual, either. It is really in the upper-middle range, intelligent and graceful writing that is addressed to an educated reader.
The book is open to being amusing, as it includes sidebars with jokes (but lacks an essay on “sidebar.”)
One of the essays, on the word “shyster,” comes close to providing the definitive answer on the word’s origin: not some Dutch lawyer named Schuster in 19th century New York City, which is what I had understood, but from the German word for fecal matter. You could look it up.
The book includes terms that are not, strictly speaking, or even not strictly speaking, used in legal circles, but a bit outside the circle: “jailbait,” for example. I’ve never encountered it in a statute or decision. And some terms are ones that we use almost without notice: “day in court” and even “versus.” The expression “make a federal case of it” is credited to Jimmy Durante, another surprise. And “paper chase” was in use a century before the movie of the same name came out.
New York lawyers may be more familiar with a few terms, such as “shyster” and “indict a ham sandwich.” The competitive nature of law practice today may be reflected in their choice of others (rainmaker, billable hour). “Third degree” is a term that originated more than a century ago in the practices of New York police inspector Thomas F. Byrnes.
The term “fishing expedition” is repeated in many court decisions, mantra-like, and the term’s lack of insight is discussed here.
I’m not sure how the authors came to choose these particular entries. My sense is that they wanted to write on words with an interesting history and development, which is a good enough reason for selecting “black letter law” (as well as a separate entry for “hornbook law”) and “deliberate speed.”
Included are terms both old (hearsay) and new (CSI effect). Like many dictionaries, the book has a prescriptive side to it, in that it is critical of some trends in using words (such as referring to an attorney general as “general.”)
What’s wrong with the book? Sometimes the essays, in trying to bring a legal term current, take on an unneeded edge. For example, in discussing the origin of “cut the baby in half,” the fact that the women involved in the biblical story were prostitutes is noted. The essay goes on to state that today, “any involvement in the world’s oldest profession could subject a woman to being declared unfit.”
For this proposition, dictum from a 1981 New York lower court decision is cited (107 Misc 2d 973, 976). But the reference, even from a third of century ago, is heavy handed. I don’t think the reader is benefitted by straw arguments and strained points like this, which occur in other essays as well. Including these current discussions suggests a political edge, which doesn’t do the book credit.
In discussing the First Amendment’s “wall of separation,” a letter from Thomas Jefferson in 1802 is compared with a dissent by Justice William Rehnquist “almost three centuries later”—in 1985. My, how time flies.
Another comment: this is quibbling on my part, but there are some other terms that I’d like to see explored: traverse hearing, horse shedding, and deadline. Perhaps another book by these authors will take these on.
Lawtalk is accessible and interesting. And a worthwhile inclusion to an educated lawyer’s personal library.