Bryan Garner on the Latest Edition of Black’s Law Dictionary

Episode Notes

Transcript

Bryan Garner: Lawyers do only two things for a living: speak persuasively and write persuasively. You would expect that people whose stock in trade is the English language and who are expected to make fine distinctions, to know how to use terms precisely. The only way to have that skill really is to have spent some time with dictionaries – with good ones – and to have an active curiosity about words.

Speaker 1: Welcome to the award-winning podcast Lawyer to Lawyer with J. Craig Williams and Robert Ambrogi bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

Craig Williams: Hello, welcome to Lawyer to Lawyer on the Legal Talk Network. I’m Craig in southern California. I write a blog called May it please the Court.

Robert Ambrogi: And this is Bob Ambrogi coming to you from just outside Boston, Massachusetts, where I write a blog called LawSites and also another blog called Media Law.

Craig: Bob, before we introduce today’s topic, we’d like to thank our sponsor, Clio, an online practice management software program for lawyers at GoClio.com.

Robert: Craig, on May 9th the Black’s Law Dictionary is about to come out in its 10th edition. As many of our listeners will know well, Black’s Law Dictionary is the de facto gold standard for legal dictionaries in the United States. It is named for its founder, Henry Campbell Black, who published the first edition in 1891. Today it is the reference of choice for lawyers writing legal briefs and judges writing court opinions, and has been cited by The Supreme Court as well as by many other courts.

Craig: Here to discuss this topic, in person, we have Professor Bryan Garner. We’d like to welcome him to the show, but a little bit on his bona fides: He is a U.S. lawyer; he’s a lexicographer; a teacher who has written several books about English usage and style, including Garner’s Modern American Usage and The Elements of Legal Style.

He’s served as an editor in chief of Black’s Law Dictionary since 1995. He founded LawProse, Inc. and co-authored two books with Justice Antonin Scalia, Making Your Case: The Art of Persuading Judges and Reading Law: The Interpretation of Legal Texts.

Personally, I’ve taken several of Professor Garner’s seminars on writing, and he is the best. Welcome to our show, Professor Garner.

Bryan: Thank you for your kind words.

Robert: Bryan, let me just start by asking you, why in the heck do we need another edition of Black’s Law Dictionary? Has the language of the law really changed all that much since the last edition came out?

Bryan: Lexicography is a very challenging task. It’s an ongoing thing and it’s not necessarily that the language changes. Although, that’s certainly true and there are thousands of new terms coming into the law and some of them are very unexpected.

For example, there’s a new Latin term “lex sportiva internationalis,” and that is the international law of sports. Among international lawyers who do sports law, this is a new Latinism. It’s used around the world, so that kind of thing has to go in.

There are about 7,500 new entries in this edition, but really what is so valuable is the additional research that my colleagues and I were able to do to add so much more historical depth. Just in browsing through the 2,000 pages, this is the biggest law dictionary ever produced. You get the whole sweep of legal history from Roman law to Anglo-Saxon law to the most modern legal concepts and the history of them.

Craig: Are we going to change the name soon to Garner’s, or Garner’s and Black’s, or Black’s and Garner’s?

Bryan: Thomson Reuters suggested that, but I think not. It’s a grand old tradition. Black’s Law Dictionary has held sway in law for a long time. My publisher, Thomson Reuters and before that, West, have allowed me to re-research and essentially rewrite the entire dictionary to bring it up to the highest scholarly standards that we could achieve, both to reflect the law, and to reflect legal scholarship in all its breadth and depth.

Robert: Bryan, you said there have been, I think, 7,500 new terms in this edition. Can you give us some examples? What’s new in this edition?

Bryan: There are a lot of new international law terms. There are hundreds of new intellectual property terms, all kinds of different patents. We’ve had for a couple of editions now “business method patents,” but I think we’ve added “patent troll” to this addition, “submarine patents,” the “utility patent,” “process patents,” “paper patent,” “pioneer patent,” “improvement patent” – every kind of patent you can think of.

There are particular fields of law. Family law is covered much more thoroughly. There are words relating to legal sociology. “Law talk” is one. Law talk, believe it or not, was first used in 1867. We date the earliest known usage of each term rather like the Oxford English Dictionary – the earliest known use of every term in the English language.

Another sociological law term is “law way” which is analogous to “folkway.” It’s used by sociological legal writers. “Law worthy” – there’s just so many terms in different fields. Essentially, I have had to canvass the literature on law – both judicial opinions and scholarly writings on law – to be sure that we cover the entire legal vocabulary.

Craig: Have you seen anything creep in from the social media side yet or legal technology? “eDiscovery” – is that one of the words you’ve added?

Bryan: eDiscovery – Let me just look that up. I feel certain that eDiscovery is in here. You’re going to embarrass me if it’s not somehow. Let me just look.

Robert: Quick, tell Thomson Reuters to stop the presses.

Bryan: We have “eDocument.” I’m going to look up discovery/eDiscovery. I mean, if not, it’ll have to go into the 11th. We do cover lots of new technological things, and we even cover the blogs.

One blogger at Above the Law, a man named David Lat, introduced three terms that were widely-enough used that they made it into this 10th edition. One is “benchslap” as a solid word, and it’s used for a judge who slaps down a lawyer who perhaps makes a frivolous argument or an objection that the judge is overruling.

The judge acts extremely parentally in doing that. Of course, it is modeled on the objectionable term “bitch slap.” It’s a pun in a way, and it was widely-enough used that we decided to include it.

Another is “judicial diva,” who’s a judge who craves sycophancy – a judge who craves lawyers who lower themselves to him or her. What is the other one? Oh, David Lat coined “litigatrix” which is a female litigator, especially. He thought it was a combination of “litigator” and “dominatrix”. But, in fact, our research revealed that “litigatrix” is an archaic term as well that goes all the way back to the 18th century, first used in 1771.

Craig: Talk a little bit about what goes into this. You’re the editor in chief, but you have a team of others who work with you on updating the dictionary. Could you describe a little about some of those people and what they do?

Bryan: Yes. I have a small army who work on Black’s Law Dictionary. At times I feel like a general, marshaling my troops. Ultimately, I have final say on what goes in the dictionary and how it’s written. We have had wonderful help not only from my five lawyer colleagues at LawProse, Karolyne Garner, Becky McDaniels, Jeff Newman, Tiger Jackson, and Heather Haines, who have just worked very hard over the last several years as we developed new entries.

I also have people around the country and even around the world who have helped in specialist areas. There’s a man named Brian Melendez in Minneapolis, who contributed a couple thousand terms relating to parliamentary law and Fred Shapiro of New Haven, Connecticut, the librarian at Yale, who dated every term in the dictionary for its first known usage in the English language, and Tony Honore – I shouldn’t omit him. He’s the retired Regius Professor of English Law at Oxford University, who is our specialist in Roman law and in medieval Latin translations.

The amount of work that these people have done is just extraordinary. But in addition to them, I have a panel of about a hundred academic contributors from law schools around the country and about 200 practitioner contributors around the country, who do extraordinary work in reviewing. What I do is I send them batches of 50 pages apiece.

A typical example would be Christopher Camardello, a litigator partner at a firm in Minneapolis, Minnesota, who carefully marked up and re-researched about 50 straight pages of the book. The book goes through many levels of review. For a 2,000-page reference book of this kind, it is simply much more than one human mind could ever hold, so you really need the help of lots of minds. I have about 300 all told.

Robert: Now Black’s Dictionary is available online and you can even get it as an app on the phone. It costs a little bit, but how are you finding the competition in the legal technology world?

Bryan: The app for Black’s is just tremendous. I use it a little bit on my iPad. I probably should use it more. I’m still very much whetted to paper. I like paper books. Most of my research is done the old-fashioned way. Although of course, online searching can be helpful as well for knowing the frequency of terms.

A source like Google Books is enormously helpful. We do a lot of our research the old-fashioned way. We look at the most reliable, sturdy treatises that were written over the years.

I’m very fortunate that Thomson Reuters has created a first-rate app for Black’s Law Dictionary, and it’s very robust. Law students often prefer it. But a lot of law students buy the big paper edition as well as the app so that you can easily refer to the book when you need it.

Robert: It was the very first book I bought when I went to law school. I got to tell you, for the first two weeks, three weeks, months of law school, all I did was read cases and then turn to Black’s Law Dictionary to try and understand what it was I was reading.

Craig: It’s a phenomenal resource, especially for young lawyers trying to learn in law school what it is.

Bryan: Thank you. You know that’s a good habit – that habit of, when you’re reading law, of looking terms up and acquiring the dictionary habit. The more successful law students tend to do that.

Craig: I was curious what you thought about the Google Book project, scanning in everyone’s books – mine included and I’m sure yours – and then making it available to the public.

Bryan: I think that it’s a tremendous service to the scholarly community. I know there are arguments about this, and I know that some of my publishers – I think I have five of them. Some of my publishers have taken a stand against it.

I should also declare that Google Corporation – the in-house lawyers at Google – are a client of mine and I do training for Google. I can’t be totally disinterested. Even if that weren’t the case, I think I could say they have made available everything in the public domain before, I think 1925, 1926 perhaps.

If you want to know historical materials – if you want access to them – you can now use Google Books and have the entire library at your fingertips in a way that was simply undreamed of in previous generations. That is a great shortcut for any scholar to get into the literature.

Now typically, what I will do is go find the book. Once I have the citation, I’ll get the book. I think it’s an amazing service to humankind. Now if it’s a more recent thing that is protected by copyright, what I typically find on Google Books is it will only give me only a snippet. I’m able to conduct research. If Google Books tells me there’s a discussion, I get a bit of the passage from a modern book. What I do is go on to Amazon immediately, buy the book, and I have the source at my disposal.

I don’t see that it is somehow curbing sales. I think it’s a great thing for book publishers and scholars because it leads people – at least it leads me – to buy books that I wouldn’t otherwise know about.

Robert: Bryan, stay with us. We have to take a short break. We will be back in just a moment with more from Bryan Garner talking about the 10th edition of Black’s Law Dictionary.

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Craig: Welcome back to Lawyer to Lawyer. I’m Craig Williams, and with us today is Professor Bryan Garner of Black’s Law Dictionary.

Professor Garner, you’ve talked about the app and using Google to do some research. How would you recommend that lawyers in the country, judges, law students – what would you say to them about how they should be using Black’s Law Dictionary? Here’s your chance – the editor of the book – to tell everybody that reads it and uses it how to do it.

Bryan: We try to make it very intuitive. It’s, of course, alphabetically arranged. I think it is fair to say this is the most exhaustive dictionary of law ever produced, probably in any language, but certainly in the English language. It covers not only American law, but to a great degree, English law, Australian law, and even Scots law. Within American law, it has unprecedented coverage for Louisiana law as well as variations among the states.

The thing to know about a dictionary is that its reliability and the scholarship that underlies it are very important aspects of it. I think, as most people know, merely googling something, you can always find a site that has maybe some material that somebody scanned in that was in the public domain that is older material, but it’s of questionable reliability frequently.

We – all 300 lawyers and law professors involved in the production of this text – have gone to great pains to be sure that it is current as of 2014 that it includes more accurate and more historical materials than any other similar resource, and we quote from more than a thousand treatises throughout the book.

Treatises that would be very difficult to find the particular passages that we say are the classical discussions of this or that term – often from Blackstone, often from treatise writers of the 19th century and 20th century whose work would simply be inaccessible and lost to history if we weren’t identifying these passages as being particularly important to illustrate and explain the meaning of terms.

Robert: I read that in this forthcoming addition, you’ve identified a thousand new Latin maxims and added them to the book. You talked earlier about lexicography work of Fred Shapiro in researching the origins and the derivations of a lot of the terms in here.

For a lot of lawyers out there, I wonder if they question whether they need to know all that. What is the value of compiling all that lexicographic information about the language of the law? What’s the importance of that to the average lawyer out there, working in the trenches every day?

Bryan: Lawyers only do two things for a living: speak persuasively and write persuasively. Lawyers are expected to be exact in their use of terminology. The better ones certainly are.

There are some who will not see the relevance of Black’s Law Dictionary. I can’t reach everyone and I know that. There are people who say, “I don’t really have any interest in legal history; I have no interest in these terms that are beyond my own practice.” That kind of anti-intellectualism, I’m willing to just write off and say, “Okay, it exists. There are going to be a few people like that.”

I think most people are intellectually a little more ambitious than that and are interested in history and are interested in acquiring knowledge. One of the easiest and best ways to acquire knowledge in any field – whether its lexicography generally. It might be one of the Merriam-Webster Dictionaries or the great Oxford English Dictionary. If it’s law, then of course, it’s going to be Black’s Law Dictionary.

You would expect that people whose stock in trade is the English language, and who are expected to make fine distinctions, to know how to use terms precisely. The only way to have that skill really is to have spent some time with dictionaries – with good ones – and to have an active curiosity about words.

Robert: Then how does this edition handle citations? I know when you took over -I think with the 7th edition I think you eliminated many of the citations that had been included in earlier editions. Definitions included multiple citations sometimes within a definition and that’s evolved a little bit over the few editions that you’ve been editor. How is that being handled in this 10th edition?

Bryan: We have several thousand citations in the book, but what you’re referring to were a lot of the definitions that were simply not works of lexicography at all but for a time in the mid-20th century many of the entries of Black’s were just taken directly from cases.

It could be the West Virginia Court of Appeals or it could be the Oregon Supreme Court or it could be the Wyoming Supreme Court, and often, the definitions were not great, and often, they were only really marginally about law.

I think it was – a Wyoming Supreme Court decision defined the term “hotel.” “Hotel” is not really a legal term, but it was in a case. I don’t think that needs to be in Black’s Law Dictionary nor does the phrase “Boston cream pie,” which was in Black’s for a while.

I’m looking at one page right now of the 10th edition, which has two quotations to the United States Supreme Court, page 837, [Mon Kastigar 22:11] hearing and [Anselle 22:15] hearing, different kinds of hearing in criminal law.

I have cited a lot of United States Supreme Court opinions – more than ever before because they are of general interest around the country as opposed to something that’s very regional – a Kansas Court of Appeals decision or something like that, especially from 1922. It may have limited applicability to modern law. I didn’t want to just bulk up the book with citations to old, local law cases that didn’t have any particular merit to practitioners around the country.

The idea is to make it as general applicability of the most important cases, especially from the U.S. Supreme Court, and if something is specific to a jurisdiction, we sometimes do quote the California Supreme Court or the Texas Supreme Court. The idea is not to lard up the book with a lot of numerical pollution. It’s just not very helpful.

Craig: You have spoken widely about legal writing and in fact you published many excellent guides of it. Here’s your opportunity to address some of the judges around our country, and I’m thinking of one in particular who uses books. I think that there’s a dictionary called The Dictionary for Highly Literate People. What would you say to a person who writes court opinions in words that you have to look up every other word to understand what it means?

Bryan: I don’t think I know what you’re talking about, but I think it’s great to have a big vocabulary. I fell in love with dictionaries when I was a teenager, and the English vocabulary is enormous – far more enormous than most people realize. Most people don’t have nearly the vocabulary that they might, but merely to use terms in a show-offy way is fairly silly.

There is one judge who never talks about examination but will always refer to perscrutation and things like that, resurrecting words from the Oxford English Dictionary that really have not been used for several hundred years. That’s kind of a preposterous, ostentatious style, so I don’t recommend it.

One of my books is called Legal Writing in Plain English, and I am a major plain-English advocate. I promote that. I have a great entry in Black’s Law Dictionary for plain language movement and for plain English, but I’ve added all kinds of Latin terms into the dictionary. It’s not that they’re recommended for use.

The purpose of a dictionary, like Black’s, is that if somebody is reading an old text and wants to find out what does this Latin phrase mean, they ought to have an authoritative answer. Black’s will give that, but it’s not necessarily a recommendation to use a lot of arcane terminology.

Craig: Are you going to take the words “hereby,” “wheretofore,” “hereafter,” and similar ilk out of Black’s Law Dictionary?

Bryan: No, I’m not. I will say things like “herewith,” “hereunto,” “hereto,” which means to this document, “heretofore,” “hereunder,” “hereunto,” “hereupon,” “herewith.”

I will tell you, even though I’ve written usage books in which I can be prescriptive, Black’s Law Dictionary has to be descriptive dictionary. I don’t make value judgments explicitly in the book. I will label certain terms “slang,” but I’m trying to give the best definitions I can.

There may be an implicit warning in an entry. For example, the definition of the word “shall.” There are many – 5 or 6 – different meanings of “shall,” and it is a word that drafters need to be very careful of. Otherwise, they create ambiguities.

To a great degree, Black’s Law Dictionary is purely descriptive. It has to marshal and explain legal vocabulary in full and as much as possible without value judgments from the editor. I also have a book called Garner’s Dictionary of Legal Usage, which is a thousand-page book on English usage published by Oxford University Press. That book is full of value judgments, precisely because it is a book of usage – what is preferred, what is not preferred.

That stuff is kind of implicit in Black’s. If, for example, the main term – you used – Is it “lexicographic” or is it “lexicographical” a moment ago. Not that that would be in Black’s Law Dictionary, but a prescriptive book would say “lexicographic” is the general term and it is preferred over “lexicographical.” That would be a value judgment that is appropriate to a usage book, but not so much to an unabridged dictionary of the kind that Black’s is.

Robert: As a side note, I should mention on this, as we’re talking about plain English, that we owe you a debt of gratitude for also putting the rules of golf into plain English. That’s recently come out in an app, so you can now have on your iPhone and  iPad The Rules of Golf in Plain English.

Bryan: That’s right. It was one of the best projects I think I ever undertook with a wonderful co-author named Jeffrey Kuhn. We rewrote the rules of golf, which are largely in gobbledygook and translated them into plain English. It was a very arduous project but a very rewarding one.

Robert: Hackers everywhere are indebted to you.

Craig: Have you thought about taking on Robert’s Rules of Order?

Bryan: Well, life is short. You have to pick and choose what your projects are going to be, and I’m a lifelong golfer. I used to play a lot of competitive golf, and I’m not particularly a parliamentarian.

Robert: Bryan, I know we’re getting close to the end of the show. What most stands out to you about this 10th addition? What are you most proud of having done in this 10th edition?

Bryan: It’s the most handsome edition that has come out yet. I think the page design is beautiful, the way the subentries are laid out. The fullness of the book is somewhat astonishing.

I’m actually looking this morning at my very first copy. It just arrived. It’s an advanced copy from my publisher. At 2,000 pages, with a very full bibliography, it’s quite some fun to browse through – probably mostly for me. I think, even a really good dictionary that I haven’t compiled, I enjoy browsing through a really good dictionary because you just learn so much.

The sweep of history contained in these 2,000 pages from Roman times and even Ancient Greece. There are a few legal terms that modern writers have borrowed from Ancient Greece.

Of course, the bias is toward modernity and 20th century law – certainly American law. If you want to know English legal history in terms of legal terminology, I think there’s no better source than Black’s Law Dictionary. I think it’s a book that will stand up for a very long time.

Robert: Bryan, what word tickles you the most in the dictionary?

Bryan: Wow, it’s a tough one. There is this arcane little word “bote,” and it has a number of different meanings. It’s an Anglo-Saxon term. This shouldn’t be so sexy, but it can be a tax. It can also be a privilege to use anything that’s needed for subsistence or repair. It can also be compensation for an injury.

A couple of months ago before we went to print, I was able to sort out all of the different kinds of bote. There are a number of subentries in different categories, and I believe I solved a little intellectual problem that even the editors of the Oxford English Dictionary had mangled, so I think it’s one of the better entries in the book from a historical perspective.

It probably doesn’t mean a lot to anybody except legal historians, but I can tell you it is a pleasure again and again to sort out these little historical, legal puzzles and be the first ever to record a legal term that’s never been in a dictionary or encyclopedia before. It’s quite exciting.

Craig: It certainly is and we’re definitely looking forward to getting it, and Bob, it’s about time you upgraded from the 7th edition.

Robert: I think it is, and on May 9 I’ll be able to do that. Listeners will be able to find out more about Black’s Law Dictionary from Thomson Reuters’ Web site, the publisher of the book. Bryan, do you have any final thoughts on this that you would like to leave us with before we wrap up today’s program?

Bryan: I have one final thought. One of you introduced me earlier or mentioned me as “Professor Bryan Garner of Black’s Law Dictionary,” and that’s true, but my dean at Southern Methodist University would not forgive me if this podcast ended and we didn’t say that I do hold a title.

They give me a fancy title at Southern Methodist University. They call me “Distinguished Research Professor of Law,” so I have to mention SMU. I also have a blog, LawProse.org, for those who are interested, and we send out a ‘law word of the day’ on our blog and a lot of terminological and writing advice every single day.

Robert: I know you’re on Twitter as well. What’s your handle on Twitter?

Bryan: I do enjoy tweeting. I’m Bryan A. Garner @BryanAGarner. Do you say “@BryanAGarner?”

Craig: Yeah, it’s kind of like Prince’s thing. You don’t really know what to say, but you pretty much have to say it.

Bryan: I think that’s right.

Robert: I think we’re supposed to be asking you the usage question, but that’s okay.

Bryan: It’s been a great pleasure talking with you both today.

Robert: Thanks a lot for taking the time.

Craig: Bryan, if our listeners wanted to reach out and get a hold of you, how would they do that?

Bryan: I’m easy to find, but my email goes directly to me, [email protected].

Robert: Thank you very much for being with us today. We really appreciate it.

Craig: Wonderful.

Bryan: Great – thank you.

Craig: Bob, that brings us to the end of the show. I’m Craig Williams.

Robert: And this is Bob Ambrogi.

Craig: Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer to Lawyer.

Speaker 1: Thanks for listening to Lawyer to Lawyer produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast covering the latest legal topic.

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