16th March 2021
5 Commonly Misunderstood Legal Terms
Legal terminology can be obscure or confusing. And since legal documents need to be clear and precise, misusing a word can cause major problems. To help you avoid errors when writing about the law, then, this post will look at five easy-to-misunderstand legal terms and how to use them correctly.
1. De Facto
“De facto” is Latin for “in fact.” You may have heard it used to describe someone or something temporary or unofficial. For instance, you could describe English as the “de facto” language of international trade. This is not an official status, but so many people in the business world use English for trade that it is “de facto” true.
As a legal term, though, it refers specifically to something that happens in practice but hasn’t been legally recognized. The opposite is “de jure” (Latin for “in law”).
This is actually one of the more recognizable Latin terms used in legal writing. This is because Latin was once the language of legal professionals. Nowadays, it mostly means that lawyers use terms that you’re unlikely to hear anywhere else.
As such, it is important to know what these Latin terms mean before you use them.
In everyday use, “discovery” refers to the act of finding something, especially for the first time. The astronomer William Herschel discovered Uranus, for example.
As a legal term, however, discovery refers to a specific process that takes place before a trial. This is when lawyers from each side in a case exchange all the documents they have relating to it. They do this to ensure that both sides have all the information they need to argue their case fairly and effectively.
“Hearsay,” in everyday speech, refers to a spurious rumor or gossip. Many think it has the same meaning in a legal context, but there is a key difference.
In law, “hearsay” refers to any statement made outside of court that is used in court as evidence. This usually means a witness reporting something they were told by someone else. It may help to think of this as “second-hand” evidence.
Unlike with the everyday sense of “hearsay,” this second-hand evidence may be very plausible. But if the person who said it originally is not available for cross-examination, it is classed as hearsay and not usually given as much weight in court.
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“Affidavit” is not a term you will hear often outside of a legal context, so you may not know what it means even if you’ve heard it used before.
The original Latin term meant “he has declared under oath.” Nowadays, it refers to a sworn statement of facts in a legal dispute. In court, for example, an affidavit might be used alongside a witness statement to prove a claim is true.
The oath made with an affidavit is legally binding. Anyone who knowingly makes a false statement may thus be found to be in contempt of court.
“Tort” is French for “wrong.” In English legal writing, though, it refers to a wrongful act that causes physical, emotional, or financial injury to someone. The person who has carried out the act may then have to pay damages in compensation.
This term is important to understand because “tort law” is one of the major categories in most legal systems. It covers civil lawsuits for a huge range of acts, including trespass, environmental damage, defamation and breach of confidence. In contrast, a “criminal” offence is one a state has made illegal because it causes harm to society as a whole (i.e., not just a private individual).
These are simplifications and exactly what counts as a “tort” or a “crime” may vary between constitutions. But “tort” is a key word to understand in legal writing.
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Legal terms have to be very specific because how a legal document is phrased can have a huge impact on its interpretation. Any mistakes can lead to serious problems, so it is important to make sure legal writing is error free.
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