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What’s in a Word – An Adventure in Legal Lexicography

by Laurie Israel, Esq.

One of the challenges of being a lawyer is to try to express thoughts clearly and elegantly when writing and speaking. With precise language, people clearly understand the issues and problems that face them. In addition, precise articulation leads to unambiguous knowledge of rights and obligations, and, as a result, reduces conflict and litigation. That is very good when you’re a practicing lawyer, and it’s good for clients because it reduces clients’ problems and difficulties, which is one of the aims of skillful lawyering.

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There is a group of legal words bandied around that helps reduce the incidence of repetitive language in documents. One of my very favorites is “said,” as in, the “said chicken that had crossed the road felt a great sense of relief.” Not having to say the name of the chicken (as in “that free-range chicken,” or “the third chicken in the line of five” that crossed the road) saves much time and effort. Anyway, it just really sounds good. I like to use the word “such” here and there for the same or similar effect, as in, “The first chicken was the fastest of other such free-range chickens.”

Another favorite is “foregoing.” I always struggle with this word, because in my mind I connect it with things that come later, which is the opposite of what it means. Perhaps because of the “forehead,” which is something on or toward the front of your head. But this word really refers to something listed or stated prior, not afterward, as in “the foregoing rules apply with equal force to the chickens that are on the other side of the road.” Even though I am mystified as to why this word refers to something stated before, I throw caution to the wind, and use this scintillating legal term anyway, and quite frequently. “Foregoing” prevents repetition and keeps the document flowing, and more importantly, makes me sound competent and important.

I have always wondered what the “ss” at the beginning of legal pleadings after the county name meant. Every four years or so, I look it up in Black’s Legal Dictionary, sometimes at the request of a client, who also wants to know. (It’s quite embarrassing to me that I don’t remember what it is, even after I look it up. But you will soon see why.)

Each time I look up the term “ss” in Black’s law dictionary, I learn it is short for “scilicet” in Latin. My Latin career in high school was extremely short-lived. In fact, it only lasted for one day. Not only did Latin interfere with orchestra, it interfered with my self esteem. After one class period, I knew with a self-awareness way beyond my years that I would never be able to learn the declensions, those extremely nasty changes in words to reflect their grammatical information. So having not studied Latin, when as an attorney I encounter a Latin word, such as “scilicet,” I cannot make it stick in my mind for more than two seconds.

That is when I always proceed to look up the term “scilicet,” and find that “scilicet” means “to wit.” I find that most unhelpful, because I don’t know what either term means. I do recognize, however, that the term “to wit” is very impressive. In fact, it is a legal term that I try to get into my documents at least once a week, as do many of my legal colleagues apparently, especially those long deceased. I would also use the term in oral speech at the appropriate moments, but always stop myself because I imagine it might seem too silly or affected.

Although I’m not sure what “to wit” means, it sounds great, and makes me feel part of the great legal tradition. It’s not that I don’t know something of what it means when I use it. I kind of know. By context. I think it means something like “for example,” as in, “Ten chickens crossed over the retaining wall, to wit, ten free-range chickens.”

However, if “ss” at the top of a court pleading means “to wit,” knowing that does not provide much help. In fact, it seems rather sphinxlike. Why in the world would anyone want to place “to wit” after the name of the county in legal proceedings? At that point, I would always abandon my unsuccessful lexicographic search to get to the bottom of “ss” for a few more years.

I recently had a lovely lunch with a business colleague — a lawyer from Lexington. He is from New York City, and about my age, and therefore, was like me, certainly well-trained in philology and grammar.

I don’t know how we got on the subject of “ss,” but he said he had also always been fascinated by it. His theory was that the first “s” in “ss” was an abbreviation for “scilicet,” and he had himself commenced a search for the meaning of the other “s” in “ss.”

My colleague had discussed this with someone (one of those people who actually have time to ponder on such matters) whose theory was that the other “s” stands for “shire.” This intuitively starts to make sense, because “shire” is the old English equivalent of “county.” So the heading in legal pleadings, when translated, would be “Norfolk” County (shire), to wit.

Well, if that theory is true, the “ss” is starting to make sense, but what does that “to wit” really mean?

Another consult with a very old dictionary (currently being used in my office to raise a computer a few inches to accommodate a non-ergonomically-optimal desk situation) revealed something that I should have realized before — “to wit” is an infinitive. “To walk” as in “To walk across the road” is an example of an infinitive. According to my 1920 dictionary (I’m a little behind the times), “to wit,” in fact, is always employed as an infinitive. I was quite pleased that I remembered what an infinitive is after all these years. (It’s amazing how things learned in eighth grade come up again and again, and also amazing how we retain them, unlike the more recent demands made on our minds.)

“Wit” means mind, intellect, understanding, sense. So perhaps “to wit” means “to think,” or “to use intellect,” or “to make someone understand.” Now this is beginning to make sense. The beginning of a pleading now says, “Norfolk County (shire) now I want to make you understand that this is a pleading that says keep your hands off my chickens,” or whatever the pleading is about.

I suspect that my lexicographic journey surrounding the meaning of “ss” and other important legal terms is ongoing and will entail a lifetime of exploration. I hope and trust that someday success will be mine and the day will come when the words and meanings will stick with me, and I will finally remember (for more than two seconds) what “scilicet” means.

Copyright ©2007 Laurie Israel.


Laurie Israel is founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is currently on the board of directors of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on mediation to stay married (marital mediation), collaborative practice, marriage, divorce, and pre- and post-nuptial agreements. She is a frequent presenter at professional conferences.

Her websites are: www.ivkdlaw.com, www.yourfamilymatterslawblog.com and www.MediationToStayMarried.com.