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.