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8 Legal Phrases Even Practitioners Might Not Know

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By Mark Wilson, Esq. on March 30, 2015 3:50 PM

There are a lot of legal words that seem obscure to law "civilians," but that lawyers easily recognize and understand. Everyone who went to law school knows res ipsa loquitor, promissory estoppel, and liquidated damages, right?

Right.

Yet, there are still even more obscure words that not even lawyers might know. To some of you out there, these words are obvious -- but probably because you still use them in certain situations. To others in different practice areas, these words are totally unfamiliar or elicit an "I think I learned that once in law school" response.

1. Subpoena duces tecum and subpoena ad testificandum

We often use the generic word "subpoena" to mean any order to appear in court, though there are technically two different kinds. The subpoena duces tecum orders the recipient to bring tangible evidence to court. A subpoena ad testificandum orders the recipient to testify orally. Some jurisdictions continue to make this distinction, but others refer to either order as just a "subpoena."

2. Demurrer

In California, everyone knows what this is, but to lawyers outside California, or the few other states that still use it, a "demurrer" is a sound you make when your mouth is full of marbles.

A demurrer is functionally the same as a motion to dismiss for failure to state a claim; though unlike a motion, a demurrer is its own type of pleading. In California, a defendant can also demur to a criminal complaint if the facts as alleged don't constitute a crime.

3. Detinue, replevin and trover

Early modern England, anyone? Two of these three personal property tort actions have been relegated to dust, replaced by statutory causes of action. The third, replevin, is still used in some states.

All three words relate to wrongfully taken personal property. Trover is an action to recover the value of the property. Replevin is an action to recover the property itself. Detinue is an action by a person claiming a superior possessory interest to recover both the property and damages for its loss.

4. Desuetude

A doctrine in which a law becomes effectively void if it's not enforced for a very long time. As recently as 2003, the West Virginia Supreme Court of Appeals affirmed (in that state, anyway) that some criminal laws can be affected by desuetude if they've been openly violated for years, conspicuously not enforced, and only prohibit immoral conduct (malum prohibitum).

5. Hypothecate

If you work in real estate, then of course you know that "hypothecate" means "to mortgage" -- right? Maybe not.

The Fifth Circuit, interpreting a contract in Louisiana in 1993, wasn't so sure. The question was whether a person could "pledge" corporate stock as collateral even though the investment contract didn't allow him to "hypothecate" them.

The court said, basically, not even the people who wrote that contract could be sure what "hypothecate" meant. Instead, the court said, people should instead use "the word 'pledge' if that is what is intended, or 'mortgage' if that is what is intended, or 'encumber' if the broader, all inclusive concept is intended." (Oh, and the court said to "pledge" and "hypothecate" were the same thing.)

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