Prattling and Shining—The Language of Oral Arguments, 0814 COBJ, 2014, August, Pg. 91
| Author | Bill C. Berger |
Modern Legal Writing—Etymology
Prattling and Shining—The Language of Oral Arguments
Bill C. Berger
About the Author
Bill C. Berger is a shareholder in the employment group at Brownstein Hyatt Farber Schreck, LLC. Contact Berger if you have suggestions or would like to see the etymology of other words presented in future columns—(303) 223-1178, bberger@bhfs. com.
I dislike arguments of any kind. They are always vulgar, and often convincing. —Oscar Wilde [1]
I recently had the chance to participate in a couple of oral arguments at the U.S. Court of Appeals for the Tenth Circuit. I was curious about some of the language used and, after some research, was struck by how accurately the words describe the process. Attorneys, who had listened carefully to their clients, labored hard to polish the fine points of their clients' positions. Judges, sitting in a panel, brought years of real-world experience to bear on technical legal issues, to loosen the knots in difficult cases. The courtroom and its regalia reinforce the inherently non-regal—and thoroughly democratic—principles of our government and, in particular, our judiciary.
Advocate, Appeal, Appellant, Appellee, Argument, Brief
advocate (ad-ve-kit), n. (14c) 1. A person who assists, defends, pleads, or prosecutes for another.2
appeal (13c) 1. A proceeding undertaken to have a decision reconsidered by a higher authority; esp. the submission of a lower court's or agency's decision to a higher court for review and possible reversal. —Also termed petition in error; (in Scots law) falsing of dooms. See CERTIORARI.3
appellant (e-pel-ant) (15c) 1. A party who appeals a lower court's decision, usu. seeking reversal of that decision. —Also termed (archaically) plaintiff in error; (formerly) appealer. Cf. APPELLEE.4
appellee (app-e-lee) (16c) 1. A party against whom an appeal is taken and whose role is to respond to that appeal, usu. seeking affirmance of the lower court's decision. See RESPONDENT. Cf. APPELLANT.5
argument (14c) 1. A statement that attempts to persuade; esp. the remarks of counsel in analyzing and pointing out or repudiating a desired inference, for the assistance of a decisionmaker. 2. The act or process of attempting to persuade. See ORAL ARGUMENT; CLOSING ARGUMENT.
[W]e may define ... an argument as a course of reasoning which firmly establishes a m atter about which there is some doubt. Cicero, De Inventione; De Optimo Genere Oratorum; Topica 387 (H.M. Hubbell trans. 1949) (repr. 2006).6
brief, n. (14c) 1. A written statement setting out the legal contentions of a party in litigation, esp. on appeal; a document prepared by counsel as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support of them. —Also termed legal brief; brief of argument.7]
The purpose of oral argument is to aid the court in its analysis, from the Greek ana-, up, and -lysis, loosen.8 Certainly, whenever Woody Allen saw his analyst in his movies, he could be said to be trying to loosen up. In the context of a court engaging in analysis, though, the word suggests instead an unraveling, as in the loosening of a knot.
The court is able to engage in analysis because the advocates first engage in argument. Argue comes from the Latin arguere, to accuse, but does so by way of a verb form not used in English, which suggests repetition.9 Thus, the word argument simultaneously captures the best and worst types of oral arguments: those that go on and on and on, repeating the same points, versus those that make a point, only to return briefly to polish the point until it glistens. Indeed, even before Latin, an Indo-European root, arg-, meant "to shine."10 This continues to be the root of words such as argent, which is still the modern French word for silver, and Argentina.
We advocates take our name from the Latin word advocare, meaning to be called, -vocare, to ad-something.11 Note those root words. It is not that we do the calling to others; we do not take our name from telling a court our client's position. Rather, we take our name because we are called to do so by others—specifically, our clients, or in the case of oral argument, the judges. Advocates wishing to make good argument do well to remember they should first listen. If we listen to our clients carefully, we come to understand their position. Then, in oral argument, if we listen to the judges, we understand their questions. Armed with that understanding, we are able to make effective argument. We can state our client's position so clearly that it will, at least theoretically, glisten like silver.
Our clients are the appellant and appellee, which obviously are words rooted in appeal. Appeal finds its origin in a different Latin verb meaning "to call"—appellare—which has become the modern French verb for "to call"—appeler.12Every schoolchild studying French learns, for example, that the phrase Je m'appelle means, "My name is ... " Literally, though, it means, "I call myself . . . "The verb appeler, in turn, comes from two Latin roots: ad-, to, and -pel, pulse. It is thought the word started with the nautical practice of beating a drum and calling out to oarsmen who rowed in unison.13 As advocates, we certainly would hope that our appeals are driven by forceful argument.
The endings of the words appellant and appellee come from the old French practice of adding -ant and -ee to verbs to reflect the actor and the party acted upon. The -ant was once the Latin accusative suffix, -antem.14The -ee comes from the past-tense verb ending in French, -e.15 Remembering that
appeal comes from "to call," an appellant is therefore a person doing the calling, and, just as we use the past tense in English, an appellee is the one who was called.
The tools we bring into argument are largely the appellant and appellee's briefs, which we carry in our briefcase. Brief comes from the Latin breve, meaning a short summary, a concise catalogue.16 In English, it originally referred to a letter, and still refers to some letters by the Pope, but now more commonly refers to a legal document. With the addition of -case, from the Latin capsa, box, one has a briefcase. The first modern briefcase, complete with a hinged iron lid, was constructed by Godillot of Paris in 1826, by attaching a hinged iron body to a carpet bag.17
Bailiff, Court, Docket, En Banc, Gavel, Judge, Magistrate, Panel, Robe
bailiff (14c) 1. A court officer who maintains order during court proceedings.
• In many courts today, the bailiff also acts as crier, among other responsibilities. See CRIER —Also termed (in England and Wales) usher; (in Scotland) macer. 2. A sheriff's officer who executes writs and serves processes.18
court, n. (12c) 1. A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice [a question of law for the court to decide].
A court ... is a permanently organized body, with independent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice." 1 William J. Hughes, Federal Practice, Jurisdiction & Procedure § 7 at 8 (1931).
2. The judge or judges who sit on such a governmental body [the court asked the parties to approach the bench]. 3. A legislative assembly [in Massachusetts, the General Court is the l egislature]. 4. The locale for a legal proceeding [an out-of-court statement]]. 5. The building where the judge or judges convene to adjudicate disputes and administer justice [the lawyers agreed to meet at the court at 8:00 a.m.]. —Also termed (in sense 5) courthouse.19]
docket, n. (15c) 1. A formal record in which a judge or court clerk briefly notes all the proceedings and filings in a court case [review the docket to determine the filing date]. —Also termed judicial record; bench docket; docket sheet.20]
en banc (en bangk or on bangk) [Law French "on the bench"] adv. &adj. (1863) With all judges present and participating; in full court [the court heard the case en banc] [an en banc rehearing]. —Also spelled in banc, in bank. —Also termed in banco.21]
gavel (gav-el). (bef. 12c) 1. Hist. A tribute, toll, or custom paid to a superior. 2. Hist. An annual payment of rent or revenue, esp. payment in kind, such as gavel-corn, gavel-malt, or oat-gavel. —Sometimes spelled gabel. 3. A mallet used by a presiding officer, often a judge, to bring a meeting or court to order.22
judge, n. (14c) A public official appointed or elected to hear and decide legal matters in court. • The term is sometimes held to include all...
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