A quantum of merit -- Say what?

Quantum of Solace, Quantum of Merit, and Quantum Meruit 

Quantum meruit translates from Latin to modern English as ‘the amount that is deserved’, -- the amount referring to money, and the basis for the deserving being the work done, and -- in the case of a law suit asserting a quantum meruit claim -- not paid for.

Quantum meruit is not the most acrane of legal terms. Both words have modern-day derivatives, though not usually employed in everyday conversation,  except perhaps when a movie takes such a quaint term as part of its title (as in Quantum of Solace).

Quantum, of course, also features in science (quantum leap, quantum mechanics, quantum physics); but it is used generically too. In the most general sense, quantum refers to amount (and not just amount in dollar-terms), such as in quantum of hope, quantum of this or that,  mostly abstract “things” that defy -- to use another derivative - easy quantification.

In court, of course, it’s all about quantification of unpaid-for services in dollar terms, and that’s how the legal use of the term quantum differs from the common one. A quantum meruit claim comes into play when there is no contract that specifies the price, fee, or rate, and testimony is therefore needed to establish the value of the services rendered or goods delivered.

As for the meruit part, we have the modern English term merit both as a noun and a verb: Merit system, merits and demerits. So, using the modern English terms that have the Latin ones as etymological ancestors, the Quantum Meruit theory could be renamed the Quantum-merited theory, or perhaps the As-merited theory. That, of course, does not sound very fancy and erudite, and would not behoove persons of academic merit who paid more than a small quantum to attend law school and become conversant in Legalese. Such folk merit a chance to plead quantum meruit when asked to take a customer to court and make them pay what the client’s work was worth, or when they sue for their own fees. 

While on the topic of merit (as a noun), it happens to happily co-exists with meruit, its Latin ancestor, in the legal community. In fact, it is a word of great currency in the court of appeals, whose members judge the quality of arguments as having merit or not day-in, day-out.  Worst verdict on appeal: No merit. Worse even than non-meritorious.

When it comes to the adjective, it gets trickier. Those who can’t resist the temptation to use it better know the difference between meritorious and meretricious. Probably not a good candidate for the Spelling Bee, but a great opportunity for a greenhorn of a law school graduate to make a fool of himself, and learn a lesson of humility. It least his faux pas of classic proportions won’t make it into Jerry Buchmeyer’s erstwhile et cetera column for the legal community’s collective amusement.

Why do trial judges get neutered on appeal? -- Trial courts are presided over by male and female judges, but appellate opinions call the judge "it"

THE GENDERLESS TRIAL COURT JUDGE

Why do appellate opinions refer to the trial judge whose rulings are attacked with the pronoun ”it”?

To me that’s a question deserving of a good answer, and I freely admit that I don’t have one. Perhaps there is no good answer, the implication being that the practice should stop. But I may just be betraying my own ignorance. Not that I have not pondered the question for some time, and cast out for a satisfactory answer.

Satisfactory one I have not encountered, but here are a couple of candidates:

Judges are "its" because that makes them gender-neutral, and gender-neutrality is a good thing

At first glance that may sound like a plausible explanation, but it is really not. For good reason: Each appeal typically involves only a single case, unless appeals were consolidated for appeal, and what’s being appealed will, in almost all cases, be the ruling or multiple rulings, of a single identified judge. As for final judgment, the general rule in Texas is that there can only be one, and there will only be one judge’s John Hancock on it. -- Oops, the John Hancock reference was not gender-neutral, but I leave that for another day.

With rare exceptions, trial court judges don’t sit and hear cases in panels. Each one is typically the king or queen in his or her court. Calling them “it” makes it unnecessary to ascertain their sex and refer to the royal that made the ruling by the gendered pronoun. But even assuming everyone shares a commitment to gender-neutrality these days, why would it be necessary to use a gender-neutral terms to refer to a specific judge in a specific case, as opposed to making generalizing statements about classes of persons, e.g. plaintiffs, defendants, litigants, lawyers, clients, and other collectivities of people that all come as adults, both male and female?

After all, what’s at issue in the appeal is whether one particular judge committed reversible error. That determination is entirely case-specific. No need to generalize. Ergo, no need to use gender-specific pronouns in the interest of inclusion or to avoid sex-based stereotypes.

The practice of referring to the trial court judge as “it” becomes even more questionable when considering mandamus proceedings, when the complaint about error is directed at a named judge, rather than the judge presiding over a particular court acting in his or her official capacity for that court. Even the shortest of opinions in a mandamus case – a one-page denial - will identify the judge by name in a footnote. But even in regular appeals, whether interlocutory or from a final judgment, the identity of judge is no secret. Nor is it hard to ascertain. It is shown on the online docket for each case.

Is there a meaningful distinction between a trial court judge having committed error that can be attacked by mandamus, as opposed to interlocutory appeal, or appeal from a final judgment? Before the Texas Legislature authorized interlocutory appeals of denial of arbitration under the TAA, savvy lawyers would file arbitration-related complaints in the courts appeals both as mandamus proceedings and as  interlocutory appeals under the FAA. The purpose of the appellate maneuver was the same regardless of the form: to get the judge’s denial of a motion to compel arbitration overturned when it was not clear whether TAA or FAA applies, or both.

Judges act in their official capacity for courts, and are therefore properly referred to as “it” because a court is an institution

True enough, each court is a public institution, and the judge is merely an office-holder. So this explanation seems logical too. But it does not hold up under closer examination. After all, the whole point of the appeal is to convince the court of appeals that the trial judge committed error, and thus did not follow the law, and -- as the person holding office -- did not properly perform the role, acting for the court, that the court should have performed. So, the error, if any, is that of the office holder.

Further, if another judge had filled in on that day and heard the matter, or tried the case, the error presumably would not have happened, or perhaps a different error would have been committed because the visiting judge made a mistake, and thus did not act in the manner consistent with the way the court as an institution should have applied the law, and dispensed justice.

If there was error, it was error of the court only in the derivative sense, i.e. the judge’s error is error of the trial court only to the extent judge and court are equated. Ultimately, if there was error, it what error on the part of a particular judge who did not follow the law, or abused his or her discretion as judge. A trial court has no discretion to not follow the law, or to re-interpret it, and to the extent the trial court judge has discretion (i.e. leeway to rule as he or she sees fit), it is within the parameters of what the courts of appeals say are the limits of such judicial discretion.

The key issue that the courts of appeals are called upon to decide is whether the trial-court judge committed reversible error. If they conclude that the judge made such error and reverse, by definition, the erroneous ruling (or erroneous judgment) does not survive as an official valid act of the court below.  The court of appeals may say that the “trial court” erred, but it is the individual acting for that particular trial court that erred. So why not refer to the judge as he or she, him or her, when the identity of the reversed judge is no secret in any event. Not even a semi-secret since appellate docket information is these days available on the web for the whole world to view.

Wondering about "race ajudicada"

Legal Latin in the age of the cloud: WTF is "race ajudicada"?

I just love this one.

My search keyword report on the causes of action blog delivered a real gem this morning: Race ajudicada.

Thanks to an internet user that is Latin-challenged, no doubt. And not a lawyer. As in …. most of the general public. Does that make the case for a classical liberal education that encompasses not only translations, but the original language of great works of literature, history, and philosophy?

Someone who was forcibly exposed to several years of Latin in school will lament the misery long endured and never forgotten, and will bewail the utter uselessness of the endeavor.  

A dead language that no one even knows how to pronounce, at least not authentically. Even the Pope speaks mostly it Italian, and presumably depends on the services of a sophisticated translation department to devise ways and means to convert modern Church thought to Latin. Hm?? What might a forthcoming encyclical on the moral dimensions of online social life and communication look like? Even the Germans and French having trouble maintaining the purity of their tongues in the face of globalization, technological advances, and the free flow of information over the internet. Will the Vatican find a way to adapt Latin to the exigencies of modern life, -- like being able to refer to intangible yet indispensable "things" that the Romans could not even have dreamed with the (mostly English) terms coined for them? They had a word for thing to be sure ("res" as in "res judicata"), and "cloud" does not pose a problem either, but what about all other things E? What about computer hardware and gadgets? Abacus? And a nomenclature of subspecies : abacus tabula, abacus stevejobiensis, tabula nook, tabula amazonis?     

After all, the ancient Romans are just that: ancient. And what the modern Romans speak today is not even written the same way even if the alphabet is still with us, though not the numbers, leaving aside dials on clock towers of churches courthouses, and expensive watches that get pitched as time-pieces with time-less allure.  

Even the Pope converses in Italian, not Latin (and does the greetings in a lot more languages, all comprehensible to large communities of people around the globe that still speak them). So why not just study Italian, or Spanish, or French? Why bother with the source code for the derivative Romance languages? Or why bother at all? Isn’t English the lingua franca of our day and age? And we already speak that. Leave Roman to the Romans. And Latin to the Latins, or shall we say Latinos and Latinas? What Latins? Latin Americans have abandoned their indigenous tongues for the most part and are doing just fine with Portuguese and Spanish. Not to mention that the latter works in more than a dozen countries.   

But now there is yet another reason that bolsters the case against compulsory Latin… Like there is a need for it….but I had to endure it, so I still have a chip on my shoulder (Though I can still recite a few passages of Ovid and Caesar’s Gallic Wars, and that comes in handy on some occasions, at least for entertainment purposes, if not to try the actually impress anyone).

Aurea prima sata est aetas, quae vindice nullo,…  bla bla bla … WTF are you saying?  

But back to Google, its increasingly intelligent search-query-to-index matching algorithms, and the argument that studying Latin helps with comprehension of legal lingo (not to mention Spelling Bee contests and gearing up for law school).

Google understands Latin

Google apparently figured out what the “race ajudicada” query was all about through some sort of algorithm that uses phonetic similarity and matched it to one of my posts on “res judicata” the way it’s officially spelled. Fine job. Now I have to  put Google to the test and see if their phonetics-cum-semantics capabilities are good enough to help folks that find themselves in a courtroom for jury selection.

Can Google tell the venire members with the numbered cards (not Roman numerals) what they are in for when the lawyers announce that they are now ready to proceed to “wow dear” or “wha diar”?

If they haven’t already been told to shut off their electronic devices, that is.  

Whao what?    

Try it yourself. Type “Wa dire” in the search box, and “Wa dire the witness” promptly comes up as a suggested search phrase. Which means it is frequently used and Google has already determined which result the searches find satisfactory, presumably based on the click patterns, differential in amounts of time different pages get viewed, and the authority or ranking of different web sites that serve up answers. 

A Wikipedia entry for “Voir dire” tops the result, and several correct matches to legal resources on the web follow below, including one to an online legal dictionary and court opinions, with text snippets below.  

Okay, so far, so very good. But what about the puzzled would-be juror, who may be misled by all these references to witnesses and testimony? Well, if they don’t do the suggested search for “wa dire the witness”, and go with “wa dire” plain and simple, the top search result on the first page is still Voir dire as explained by Wikipaedia:

1.    Voir dire - Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Voir_dire‎

o    Cached

Voir dire /ˈvwɑr ˌdiər/ is a legal phrase that refers to a variety of procedures connected with jury trials. It originally referred to an oath taken by jurors to tell the ...

Some of the results, though, are totally off-topic, or shall we say “inapposite”, including hits for doctors with “Dire” as their last name. But how would Google know what kind of “dire” the user wants to know about, -- unless there is some contextual information available that the algorithm can use to determine the intent of the puzzled lay person struggling with courthouse jargon. 

Like using free wireless at the courthouse (complements of the county) and giving away their location, or having searched for court-related stuff shortly before.

Okay, so this it was – my quotidian offering on Race ajudicada  – my mot du jour. Not that I take credit for the neologism… not to mention prospective Anglicization of a foreign phrase, though unintended.

Word salad à la française

Did I suggest that learning French makes more sense… inter alia, ceteris paribus, assuming arguendo that a foreign language it has to be … be it to get into the college of choice, or for whatever other practical reason, like being able to order a la carte at a fancy restaurant, and not having to rely on the waitress for tableside translation services.  

Now try a phonetic Google search on that one: Modesure (or perhaps Mow too sure). Or, to venture forth on the culinary front in the quest for cloud-based elucidation. How about pree fee?  

My verdict: Even Google can still learn.

Thanks goodness there is tripadvisor.com:

1.   priks fiks or pree fee? - New York City Forum - TripAdvisor

www.tripadvisor.com › ... › New York City › New York City travel forum‎

o    Cached

Just another stupid question. do you pronounce it like "priks fiks" or "pree fee"?

Blogito Ergo Sum

Not that I ever actually read Descartes' exposition on the essence of the human being and the ramifications of being endowed with the capacity to think.

But when faced with the self-inflicted choice to brand my future contributions to what was then not even called the cloud, and to send off daily installments of thoughts distilled down to written language under some kind of catchy tag line -- offerings to the globalized discourse that typically turn out to be less than daily upon dissipation of the an incipient blogger's initial excitement -- I thought Blogito Ergo Sum was not only fitting, but witty.

What with me liking to think of myself as an intellectual or at least aspiring to be one, perhaps one day, though not a public one, not a card-carrying member to the chattering classes or one of the acclaimed talking heads.

Not that one should trust one one's judgment about being funny. You may as well be the only one left laughing at your own miserly jokes.  
 
Anyway, the blog did not get off the ground then, and if you do a Google search now you get about 23,600 results. for "Blogito Ergo Sum". That pales by comparison with the 2-million-plus for the original well-aged locution of the dead white expatriate Frenchman, but it's hardly  an original take on Decartes any more.

So there you have it:  Since this blog will be about law and language, I'll be blawgittng, rather than just blogging, and  will try to make it the essence of some of my idle moments as a homage to the famous philosopher. So that I may still be, rather than not be, - with thought rather than going without. 

Shakespeare no doubt could have provided plenty of raw material for blog branding too, and -- unlike Decartes -- I actually had occasion to study him, and see a number of his plays on stage, but Hamlet and many others have already been cannibalized for phrases, locutions, and sound-bite sized wisdoms for centuries.

When everything ever written, if not said, ends up in the cloud, its hard to be original these days. That's even true of aspiring intellectuals that fancy themselves as capable of innovative thought, those who still get a thrill out of the idea of saying something new; something never said before. Even if they have concluded that trying to be witty may be a lost cause, in light of the stiff competition from other forms of entertainment that are less dependent on the beauty of words and phrases, and the artful concatenation thereof.