Friday, February 05, 2010

The spirit of the common law

Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.
-- Chief Justice Fortescue, in Y.B. 36 Hen. VI, ff. 25b-26 (1458), quoted in Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed.) at 387.

... Garner adds that "in Texas, for example, where most defensive pleadings contain the phrase, not one lawyer in fifty can explain what the phrase means."

In their defense, it's true that one of a lawyer's fears is omitting some "magic words" which he doesn't understand, but which it turns out the court both understands and rules against his client due to the omission thereof.

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