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OPINION

Looking for the right word? Try it in Latin

The Examiner

In the law we use terminology that is sometimes unique, confusing and hard to say.

Some of it is from Latin, which I don’t understand. Why use a language nobody speaks anymore?

But we do.

Ken Garten

Some of my favorite Latin legal terms are quid pro quo, res judicata, arguendo, and voir dire (actually a French term, but close enough).

Perhaps these are among my favorites because I know what they mean, am able to use them in context, and I can pronounce them correctly. At least I think so. Others may differ.

Quid pro quo literally means “this for that.” It typically comes up in a contract dispute, or a dispute over a situation that may or may not constitute a binding contract, that being the point of disagreement. The invocation of the term “quid pro quo” infers that there was mutuality of consideration and assent to the terms – “this for that” – which is a fundamental element of a binding contract.

I once invoked the term “quid pro quo” in a closing argument at the end of a long, heated trial over a real estate dispute. I was delighted when the judge echoed back the same term in announcing her decision in our favor at the end of the trial.

Res judicata means “a thing decided.” The term is the actual name of an affirmative defense to a civil claim, based on the matter having already been decided in a previously concluded case. It is the basic equivalent of double jeopardy in the civil law.

Now people may think who would file a lawsuit that was already previously decided? But there are instances in which a suit is filed, and there are technical questions as to whether a prior lawsuit that was filed and determined or dismissed, sometimes in another locale, and not exactly the same case but similar, is or is not, res judicata.

That determination can often mean the continuation or dismissal of the new case.

Voir dire means “to see to speak”. It’s most common meaning in the practice of law is the process at the beginning of a jury trial, whereby the 12 jurors who are actually going to hear and determine a case are winnowed from a room full of jury panel members consisting of between 36 and 75 (or even sometimes more) citizens.

In the state courts of Missouri, voir dire is generally conducted by the lawyers trying the case. The lawyers stand before the room full of citizens asking questions of the potential jurors about their backgrounds, beliefs and biases, the stated reason being to pick as fair and impartial jury as possible and eliminate those potential jurors who may have backgrounds, beliefs or biases that may render them unable to be fair jurors in a given case.

For instance, in a criminal case the defense lawyer always wants to ask if any of the potential jurors are or have a close friend or family member who is a law enforcement officer. Because it’s likely that those who do have heard their close friend or family members in law enforcement talk over dinner about how criminals have all the rights, they’re all guilty, etc., etc., etc.

Strike that potential juror for the defense.

And of course, prosecutors in criminal cases always want to ask the panel if they, or any of their close friends or family members have ever been falsely accused of crime, or harassed by police.

The answers to these questions can understandably lead to strikes by the prosecution.

Arguendo means “for the sake of argument”.

It is typically used in oral or written legal arguments, as with: “Your Honor, even arguendo, if my opponent is right with respect to his first point, his case still fails because of the second point.”

I also like the way that sounds: “ARGUENDO!”

Sometimes when you aren’t sure what you’re talking about, it helps to use big words.

But maybe not. I probably wouldn’t recommend it.

But now you know about quid pro quo, res judicata, voir dire and arguendo.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.