If you are our amicus

These phrases do bespeak us.

So join us Pro Tempore

Res ipsa loquitor!

But Caveat your emptor

For these are but exemplar

Of the terms you see De facto

With meanings not exacto.

We lawyers often use em

Though some think we abuse em.

If used sparingly we defend em

If not, Contra Preferentem!

If not helpful, we retract them!

What do you expect from nudum pactum!

*an idiom, a structure or a word derived from or suggestive of Latin

By Frederick Alimonti, Kathryn Chandler and Jamie Rawlinson (clerk)

 

At the suggestion of a client, we have assembled a list of the Latinisms that are likely to turn up in lawyers’ reports, etc.  These are the main ones; there are hundreds, but any lawyer who peppers a report with too many of them is just show­ing off.  We hope these are helpful.  If we have missed some, we apologize.  Please drop us a note, and we will update this listing on our website.

Ab Initio – “From the beginning.”

The term is generally used to mean that something has been a certain way since its inception.  It is very often used by lawyers to describe an agreement that was improper and not binding at its inception.  Such agreement would be “void ab initio.”

Amicus Curiae – “Friend of the Court.”

Often used to describe both the role and brief of a party with an interest in litigation, but who is not an actual party to the litigation.  As a friend of the court (but really probably trying to push their own agenda), they will often file an “amicus brief.”  Amicus briefs are often filed by government agencies (e.g., the FAA) and trade associations (e.g., IATA).

Caveat Emptor – “Buyer beware.”

This Latinism provides that a purchaser is responsible for judging, examining and testing a product he wishes to pur­chase.  It is often used to distinguish the modern trend toward warranty and product liability recoveries, as compared to the “good old days” of caveat emptor.

Contra Preferentem – Literally means, against (“contra”) the one bringing forth (“Preferentem”).

Rule of contractual interpretation meaning that an ambiguous term in a contract will be interpreted/construed against the party that drafted it.  This is a term near and dear to the insurance industry as it is routinely employed to interpret policies against the insurer and in favor of coverage.  Insurers are also accustomed to hearing that ambiguities will be interpreted against them, also by operation of this phrase.

De Jure – “Rightfully, by right.”

Descriptive of a condition in which there has been total compliance with all requirements of the law.  Usually it is used in combination with de facto (below) either in conjunction or in comparison.  It has a somewhat pejorative context as well in that it is often used to suggest compliance with the letter of the law at the expense of the spirit or intent of the law.

De Facto – “In fact”

Contrary to de jure, de facto describes a condition which must be accepted for all practical purposes, often as a matter of fact.  It too can have a pejorative context.  Were one to suggest that a city was run by a corrupt businessman rather than the elected magistrate, one might refer to this businessman as the de facto mayor.

De Minimis – “So small or trifling as to be insignificant.”

Often lawyers use this to suggest something too small to be worthy of recompense.  It may also be employed to suggest a small de minimis settlement of “nuisance value.”  Lawyers sometimes suggest that their fee bills are in this category, but clients beg to differ.

De Novo – “A second time,” “starting afresh,” or literally, “of new.”

This is often used in the context of standards of review, meaning to what extent an appellate court can review the deci­sions of the court below.  At one extreme are the “abuse of discretion” and clearly erroneous” standards, meaning that the appellate court can reverse the decision only if the decision below is essentially legally unsupportable.  Under a de novo standard however, an appellate court may review the entire record from the court below and may, in effect, sub­stitute its decision for that of the court from which the appeal is taken.  For obvious reasons, the party taking the appeal likes de novo review.  The party opposing it would prefer a standard that better insulates the decision below.

Estoppel – Doctrine holding that an inconsistent position, attitude, or course of conduct may not be adopted if to do so would cause a loss or injury to another.

Related: Collateral Estoppel – Prevents an already-litigated issue on which a valid judgment was passed, from being re-litigated in the future by the same parties.

In the insurance context, estoppel can create coverage where none existed – to be distinguished from “waiver.”

When an insurer “waives” a coverage defense, (e.g., failure to assert lack of timely written notice of a claim) it none­theless typically ends up defending a covered claim .  If an insurer defends an uncovered claim to the point where the insured has relied upon and taken positions to its detriment, the insurer may be “estopped” from later denying coverage of the otherwise uncovered claim.  For example, controlling the defense of an otherwise uncovered claim can be suffi­ciently detrimental to an insured to give rise to an estoppel.

Ex Parte – Proceeding brought by one person in the absence of another.

Lawyers are not supposed to meet with a judge ex parte, i.e., in the absence of the opposing lawyer(s).

Forum Non Conveniens -  “Inconvenient Forum”

This refers to a motion made to the court to transfer a case to another forum [or, more commonly  and typically, to dis­miss a case in favor of another forum] for the convenience of the parties and witnesses etc.  It arises when the court has jurisdiction over the case and venue (the chosen court) is proper but nonetheless not convenient.  In state court, the re­sult may be dismissal in favor of another state.  In federal court, the result is dismissal in favor of another country.  If a case in federal court should best be heard in a federal court in another state, the solution is provided by a simple 28 U.S.C. §1404 motion to transfer.  In cases in which the action is “dismissed,” the party making the motion will often have to agree to submit to jurisdiction in the proposed new forum and perhaps waive certain defenses such as an ex­pired period of limitations.  A motion to dismiss a case from one place (e.g. county) within a state to another may also be described as a forum non conveniens motion.  The benefit to a defendant of a transfer from say, Bronx, New York to Suffolk, New York could hardly be underestimated.

In Limine - “at the outset, on the threshold.”

Various motions may be brought before the judge literally on the eve of trial.  They often seek early rulings on what evidence the court will allow.  This is most common in the context of a motion in limine.  For example, a motion in limine to preclude the testimony of an expert might be raised in limine.  The outcome could have a dramatic impact on the trial.  These motions are helpful insofar as they allow the court (assuming the judge actually reads the papers!) to make a more informed decision as opposed to an oral and unbriefed motion raised  in the middle of a trial via an objec­tion.

Nudum Pactum – “A voluntary promise, without any other consideration than mere goodwill, or natural affection.”

These promises are thus not enforceable by law because there was never any “mutuality of consideration,” meaning promises going both ways.  Thus, “I promise to take the garbage out” would be nudum pactum.  While an agreement to take the garbage out in exchange for a car wash could form the basis for a binding contract – particularly once one party has performed his part of the agreement.

Nunc Pro Tunc – Literally translated, “now for then.”

This phrase applies to acts allowed to be done after the time when they should be done, with a retroactive effect.

This would apply in law when an error is made and the court, either on request of a party, or in its own (“sua sponte” see below) corrects something as if it had been correct from the onset.  Example, a party is incorrectly named in a com­plaint but nonetheless responds and participates in the litigation.  The complaint might be amended nunc pro tunc.

Prima Facie – At first sight; a fact is presumed to be true unless disproved by some evidence to the contrary.

Ex: A defendant’s confession to the police is prima facie evidence of guilt.

Prima Facie is used in many legal contexts. For instance, as mentioned later in this newsletter, forum selection clauses are prima facie valid unless substantial proof is shown that the clause is unreasonable.

In the most common and important context, once a plaintiff has enough evidence to support a prima facie case, his case will survive a summary judgment motion and get to a jury.

Pro Bono – For the Good – Services performed for nothing. 

One of the few Latinisms expressed more frequently by clients than counsel.

Pro Forma – “Standard.” I.e., a pro forma motion is a “standard motion”

Examples of Standard Motions include: Motion to Dismiss, Motion to Suppress, and a Motion for Judgment as a Mat­ter of Law.

Pro Hac Vice – “For this one particular occasion”

Generally used to describe the admittance of an out-of-state attorney to argue in a local jurisdiction solely for a particu­lar case.  Often coordinating or national counsel will apply for admission pro hac vice to participate in trial in jurisdic­tions in which they are not admitted.

Quantum Meruit – “As much as deserved.”

This is an equitable doctrine that allows for payment of labor and materials even where there is no contract as a way to prevent unjust enrichment.  If a contract is breached, under certain circumstances, the party seeking damages may seek quantum meruit damages for the value of the work rather than the anticipated profit on the contract.

Quid Pro Quo – Mutual consideration by parties to a contract

Ex. Used in law for the giving of one valuable thing for another.

Res Ipsa Loquitor – “The thing speaks for itself”

A rule of evidence that presumes negligence when the instrumentality causing the injury was within the defendant’s exclusive control. This legal theory enables a plaintiff to establish negligence without proving the specific facts of the negligence.  An example would be injury to a passerby by a falling piano.

One could argue that most aviation crashes are res ipsa cases insofar as the passenger seldom is at fault. However, be­ing that any number of players could be at fault (e.g., operator, manufacturer, A&P) it is not a true res ipsa situation.  Plaintiffs nonetheless know that fault will ultimately be established, perhaps even through infighting among the defen­dants.

Respondeat Superior – “Let the principal answer”

Doctrine holding that in certain cases the employer is liable for the acts of their employee when the employee is acting within the scope of their duty.

It is under this theory that all corporate defendants are ultimately liable in tort.  A classic example is “pilot error” for which the operator is held liable.  Institutions can only act through their personnel and are correspondingly responsible for these employee’s acts.

 

Sua Sponte – Of his own will.

Typically applied when the court (i.e., the judge) raises an issue on its own that was not raised or requested by a party.  This can often come as a surprise to one or both sides in litigation.  Judges [too often in our view] will raise an argu­ment or issue sua sponte to save a lawyer from his/her own incompetence, thus encouraging them to continue with their sloppy practices.

 

Voir Dire – Preliminary examination by lawyers of prospective jurors to inquire about their qualifications and suitabil­ity to serve as jurors.

Alternatively may be used to describe the process by which a lawyer attempts to disqualify an opposing expert witness,

Ex.:  In My Cousin Vinny, when Jim Trotter asks permission to qualify Ms. Mona Lisa Vito as an expert witness (read with a deep southern accent in mind), “Your honor, I would like to voir dire this witness.”

Additional terms not in Latin but that we also felt were worth mentioning:

 

Consideration – The inducement or value to a contract. It is a basic element necessary for a valid contract.  A contract requires value going in both directions, e.g., cash for services.  Without this “mutuality of consideration” it would be nudum pactum.

Implead – To sue, to bring a new party into an action on the ground that the new party is allegedly liable to the one who brings him in for at least a portion of the claim. This is the same thing as a third-party claim.

Interpleader – Suit brought in equity to determine the rights of opposing claimants to property held by a third party who has no interest in the property.  To escape the conflict, a party that knows he owes a fixed sum, but the distribution among various claimants is uncertain, may pay this into court and let the various claimants fight it out.

Sources:

In Rebus:  www.inrebus.com/legalmaxims_i.php

Black’s Law Dictionary, 8th ed. (2004)

My Cousin Vinny, Twentieth Century Fox Film Corp © 1992.

Our own “editorial” comments


"Other Insurance:" Excessive coverage narrowly construed to maximize coverage

Overlapping coverage can be one of the most vexing of insurance issues.  Recently, in Fieldston Property Own­ers v. Hermitage Insur. Co.,1 New York’s Appellate Division, First Department examined the interrelationship of two insurance policies that covered different aspects of the same claim.  Hermitage Insurance issued a CGL “occurrence” policy to its insured, Fieldston.  Federal Insurance Company issued a “claims made” Directors and Officers (D&O) pol­icy to Fieldston.

The details of the case need not detain us.  Suffice it to say that certain claims were covered exclusively under one policy or the other while one claim [for injurious falsehood] triggered coverage under both policies.  Federal argued that it was merely an excess insurer, relying on a clause within its policy that relegated it to excess status in the event of overlapping coverage.  Thus, from Federal’s point of view, it would only have to defend Fieldston if and when Field­ston reached the liability limits of the Hermitage policy.  However, the above-mentioned injurious falsehood claim was the only claim for which there was potential overlap.  All other claims were either exclusive to Federal or exclusive to Hermitage.  The court summarized Federal’s position as follows:

[R]egardless of the number of claims asserted against one of its insureds that are covered under a policy providing primary coverage but containing such an “other insurance” clause, it is absolved of any obliga­tion to defend its insured as long as the complaint in the underlying action includes even a single cause of action that falls within the coverage of another primary insurer's policy . . . .

- 2009 WL 466121 *3.

The Court’s ultimate decision rejecting this argument rested on well established principals of coverage:  First, the duty to defend is broader than the duty to indemnify and, second, the duty to defend extends to uncovered claims coupled with covered claims.  Accordingly, since both insurers had a duty to defend their covered claims, they too had a duty to defend the uncovered claims.  Thus, Federal and Hermitage were co-insurers with respect to both the covered and [unshared] uncovered claims.  As co-insurers for these claims, the court said they must equitably share the costs of defending Fieldston for all those claims. 

Oddly, the injurious falsehood claim was the only claim covered by both policies.  This overlap in coverage trig­gered the “other insurance” clause in Federal’s policy and, accordingly, Federal was deemed to be the excess insurer with respect to this solitary claim.  So this meant that Federal would not be liable for coverage of this claim until Her­mitage’s policy met its liability limit, with respect to this claim only.  Hats off to the poor bean-counter who has to pour through the legal bills to determine what portions of the defense are attributable to this single claim and should thus be severed from Federal’s duty to defend the other claims.

 2009 WL 466121 (N.Y, A.D. 1st Dept. 2009)


New York Process Servers Poised to Invade Latin America!
If you operate your business in the handful of countries that are not party to the Hague Service Convention (i.e. a majority of Latin America, except Argentina, Venezuela and Mexico), be aware that you may be served with legal process  from a New York action in that country, New York style.1

In an interesting case out of the Second Department, Morgenthau v. Avion Resources Ltd., 898 N.E.2d 929, the defendants allegedly operated an international money scheme in violation of both Brazil and New York banking laws.  However, since the defendants were located in Brazil, the NY district attorney (DA) was forced to serve them there.  Subsequently, the defendants challenged the validity of the foreign process service by Brazilian police officers, acting on behalf of the New York DA.

While the defendants correctly argued that the U.S. must comply with the dictates of international law as well as with international treaties, such as The Hague Service Convention, Brazil is not a party to any such treaties.  Therefore, due to the lack of international regulation between Brazil and the United States, the Court of Appeals found that the defendants were effectively governed by the New York Rules of Civil Procedure.

In short, if no international treaty applies, C.P.L.R. §313 states that a person subject to jurisdiction in New York, but physically located outside the state’s borders (or even the country’s), may be served in the same manner as with parties physically located in-state. Proper in-state service of process is hand-to-hand delivery to the party or their agent, mailing it to the party’s place of business, or through the “nail and mail” technique whereby you may affix the sum­mons to the property at their last known address and mail it to their place of business.  When serving outside of NY, the only additional requirement is that service be accomplished by any person legally able to make service within jurisdic­tion where service is made.2  Because these requirements were met, the defendants were found to have been properly served, even if they were served in Brazil.

However, this ruling may be but the tip of the iceberg.  It is entirely possible that a foreign country may refuse to recognize the validity of the process and, indeed, may consider it to be a violation of national sovereignty.  This issue may not come to a head until a judgment  is rendered and sought to be enforced against the defendant in that foreign country.  If the defendant has U.S. assets, there is little doubt that the New York judgment will be given “full faith and credit” throughout the U.S.A.  However, the court of a foreign country may look further in determining whether to en­force the judgment as a matter of international comity.  Good luck if you have nothing but a U.S. default judgment and you want it enforced against a national’s assets in his native Brazil where he was served under New York law!

While most of Europe and large trading countries of Asia have ratified or acceded to the Convention, most of Central and South America, with the exception of Argentina and Venezuela have not; both Canada and Mexico have acceded. For a complete list of countries that have ratified or acceded to the Hague Service Convention, as well as for a copy of the text please visit the Hague Conference on Private International Law at http://www.hcch.net/index_en.php, next click the link to Specialized Sections, and then Service Section.

2 N.Y. C.P.L.R. § 313x (McKinney 2009).


Forum-Selection Clauses: They Mean What They Say

Although no party entering a contract ever expects to be litigating about it later, should litigation arise, the con­tract will be the first place a court looks to determine what the parties agreed to.  Most contracts contain both “choice-of-law” and “forum-selection” clauses; both of these clauses serve different purposes.  The former determines which law will apply to interpreting the contract while the latter determines which court shall (or may) hear a case arising from the contract.  A great deal of litigation is generated by parties who have had second thoughts about either of these choices and seek a way [to wiggle] around them.  Imagine, for example, if there was a jurisdiction that declined to enforce both choice-of-law and forum- selection clauses.  A party seeking to avoid the substance of these clauses could sue there and avoid these contractual terms.

Recently, in W.J. Deutsch & Sons, Ltd. v. Charbaut American, Inc., the New York Appellate Division (or inter­mediate appellate level), reversed a decision by a trial court and dismissed a lawsuit that had been brought in an im­proper forum outside the forum-selection clause.1

Plaintiffs in Deutsch sued for breach of contract in New York, but the contract at issue contained a forum selec­tion clause requiring that all disputes be resolved by the Tribunal de Commerce de Reims in Reims, France.  Thus, de­fendants argued that the French tribunal was the exclusive forum for the dispute.

In most cases, the critical determination for a court in examining a forum-selection clause is whether the clause is mandatory or permissive.  In Deutsch, the Court held [at least implicitly] that the clause was both reasonable and mandatory.

Forum-selection clauses, even if not foolproof are an effective tool for parties to a contract to add predictability and to discourage forum shopping in the event of a dispute.  While nothing can prevent a party from suing in a forum of their choosing, the prospects of a dismissal or transfer in the face of clear contractual language may nonetheless per­suade them to stick to the deal they struck.  Using the example of a purchase agreement in which the buyer wants the right to sue or be sued in its home jurisdiction pursuant to the law of its home state, the language in the contract should be clear and concise leaving no doubt that the choices are both mandatory and exclusive.  Don’t skip the fine print!

1 57 A.D.3d 529, 868 N.Y.S.2d 293 (2d Dep’t 2008).

Use It or Lose It? Maybe Not. Failure to State a Claim Need Not Be Raised by Motion, Says New York's Second Depo

If you have been losing sleep over whether you can just plead that old favorite: “Failure to state a claim upon which relief can be granted” or whether you must make a motion based upon this defense to preserve, rest easy, a sim­ple affirmative defense should be enough.

The “failure to state a claim” affirmative defense has at its route the common law “demurrer” whereby a de­fending party claims that the plaintiff’s allegations, even if true, do not support a legal cause of action.  It is routinely pleaded in nearly all answers as a matter of course (see “pro forma” in lead article).  However, as a practical matter, this defense has eroded in significance as most defendants are able to plead various defenses that would fit within this defense far more specifically (e.g., preemption, economic loss doctrine, landlord out-of-possession, lack of notice, etc.).  Nonetheless, including “failure to state a claim” in your answer could act as a placeholder until more specific defenses are developed during discovery into which a defendant could try to “pigeon hole” a specific defense.1

Recently, in Butler v. Catinella,2 the Appellate Division in the Second Department of New York overruled a long line of previous second department cases and ruled that failure to state a cause of action may be properly stated in an answer.  Previous second department authority required that this defense be raised in the early going via a motion to dismiss or otherwise be waived.

The issue arose in Butler when the plaintiff/appellant filed suit for specific performance of a buyout provision contained in his partnership agreement with the defendant’s late husband. The agreement valued the subject property at $800,000.00 USD, but defendant contended that the property was actually worth substantially more and she did not want to let go of it at this undervalued price.

In her answer to plaintiff’s complaint, the widow stated as her first defense, that the plaintiff failed to state a cause of action in his complaint.  Plaintiff successfully argued in the lower court that this defense should be barred be­cause it was not properly raised in a separate motion.  New York’s Civil Practice Law and Rules states that a motion to dismiss for failure to state a claim, “may be made at any subsequent time or raised in a later pleading if one is permit­ted.” Therefore, based on a plain reading of the statute, the Appellate Division made three conclusions: first, defen­dant is permitted to make a pre-answer motion to dismiss her complaint; second, defendant could have chosen to assert her defense in the answer; or third, defendant could have opted to make a post-answer motion.

It is also important to note that this decision brings the Second Department in line with decisions already made in the First and Third Departments, neither of which require the defense of failure to state a cause of action to be pleaded in a separate motion.  Foolish consistency nonetheless still being the hobgoblin of little minds, attorneys want­ing to play it safe have little to lose by continuing to plead this “standard” affirmative defense.

1 In most jurisdictions, the answer can be freely amended when new facts are developed in diligent discovery.

2 58 A.D.3d 145, 868 N.Y.S.2d 101, (App. Div. 2 Dep’t 2008).

3 CPLR 3211(e)