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When should lawyers italicize Latin phrases?
Many Latin legal terms and phrases have been assimilated into legal English and should not be italicized. Knowing which terms to italicize can save you time and make your writing more polished.
Tl;dr: Here’s a handy downloadable list showing when common Latin terms should be italicized. Read on for an explanation, and please share this post if you find it helpful.
Latin phrases and other foreign terms should be italicized in English prose unless they have been assimilated into general or legal English, in which case they should not be italicized.1 Since there is no central authority to decree which terms have been assimilated (and terms are assimilated into or dropped from common use over time), this rule provides only limited guidance.2 Attorneys tend to italicize terms or not based on their intuition and experience, leading to inconsistent practices.
The general rule: do not italicize Latin phrases that have been assimilated into English
We can supplement the general rule about when to italicize foreign terms with a few more guidelines. As with all writing guidelines, exceptions apply, and sometimes the guidelines conflict:
Do not italicize foreign terms that are necessary “terms of art”: that is, terms forming part of a current legal doctrine applied by attorneys who practice in the relevant area of law.
Do not italicize foreign terms that commonly appear unitalicized in treatises, law review articles, judicial opinions, or popular writing.
Italicize maxims of equity written in Latin.3
Italicize foreign terms that could be confused with an English term or otherwise cause miscues. (A miscue occurs when the reader pauses because their flow has been interrupted by text that unexpectedly deviates from standard patterns.) Good examples include the phrases in forma pauperis and in propria persona; since “in” is a common English preposition, readers should be alerted that what they are about to read may not be an English prepositional phrase beginning with “in.”
Phrases about which stylists agree
The first step toward a uniform italicization style is to identify terms on which stylists broadly agree one way or the other about whether they should be italicized. Here are a few, all consistent with the recommendations in Black’s Law Dictionary (11th ed.):
Use italics: in forma pauperis, in propria persona, ipse dixit, De minimis non curat lex4
Use roman type (nonitalics): ab initio, actus reus, alter ego, amicus curiae, a priori, arguendo, bona fide, collateral estoppel, de facto, de jure, de novo, dicta, e.g. [except in citation signals], ipso facto, en banc, et al., et seq., ex parte, guardian ad litem, habeas corpus, i.e., inter vivos, in vitro, mens rea, modus operandi, nunc pro tunc, per diem, prima facie, pro rata, pro se, qui tam, res judicata, status quo, ultra vires
Close calls: phrases about which stylists disagree
Where The Bluebook arguably gets it wrong
The Bluebook offers [in Rule 7(b) of the 20th edition] the phrase “non obstante veredicto” as an example of a phrase that has been assimilated and therefore should be in roman type rather than italicized. I disagree. Perhaps some jurisdictions still use this Latin phrase to refer to motions for judgment notwithstanding the verdict (“JNOV” or “nonsuit” motions), but the phrase seems obsolete, and I’ve never encountered it in practice.
I also question the Bluebook’s practice of italicizing passim, which is used in tables of authorities and elsewhere to indicate that a source is cited throughout a document. The Chicago Manual of Style calls for passim to be written in roman type (CMS § 7.55), and the term is ubiquitous in legal briefs. So too with id., infra, and supra. The theory behind italicizing these may be that they are similar to citation signals. But unlike “see” and “compare” (for example), these terms don’t show the relationship between a statement and its supporting citation.
Where Black’s Law Dictionary arguably gets it wrong
Black’s Law Dictionary (11th ed.) recommends that the two terms below be italicized, but I disagree. Each has been assimilated into legal English as a term of art, and each often appears in judicial opinions and other legal writing without italics:
de minimis (“of minimal importance”) = an injury or violation that is so insignificant that a court may overlook it in deciding an issue
pari passu (“on equal footing” or “without preference”) = in debt law, a bond clause providing that if the borrower makes payments to other creditors, the borrower must also make pro rata payments to the creditor who issued the bond
On the other hand, I would italicize the phrases below despite Black’s Law Dictionary calling for them to be in roman type. As discussed earlier, Latin phrases beginning with in can cause miscues, so italicizing them alerts the reader that something is different about the italicized text. So too with Latin phrases beginning with a, which means “from” and is not an indefinite article.
a priori (“from before”) = preconceived or formed beforehand
in camera (“in chambers”) = in a judge’s chambers or other confidential, behind-closed-doors setting
in personam (“in the person”) = in civil procedure, a synonym for “personal jurisdiction” — a court’s authority to exercise jurisdiction over a person because, for example, they are domiciled in the court’s geographic jurisdiction
in rem (“in the thing”) = in civil procedure, an alternative basis for exercising jurisdiction based on the fact that certain property is located in the court’s jurisdiction, even if the court lacks personal jurisdiction over the property’s owner
An exception is “in vitro,” since that term routinely appears unitalicized in popular writing.
Sidestep the problem whenever possible.
Since your legal writing should be as reader-friendly as possible — readable briefs are more likely to persuade — avoid using Latin terms that have equally acceptable English substitutes. For example, write “personal jurisdiction” (not “in personam jurisdiction”); “claim preclusion” (not “res judicata”); “among others” (not “inter alia”); and “even if” (not “even assuming, arguendo”).
Ryan McCarl (LinkedIn) is the author of Elegant Legal Writing (U. Cal. Press 2024), a founding partner of Rushing McCarl LLP, and an adjunct professor at LMU Loyola Law School. The Elegant Legal Writing book is now available for preorder. For more writing tips, subscribe for free to the Elegant Legal Writing blog:
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See, e.g., The Chicago Manual of Style (17th ed.), § 7.53–55; The Bluebook: A Uniform System of Citation (20th ed.), Rule 7(b).
In The Redbook: A Manual of Legal Style (4th ed.), Bryan A. Garner recommends checking Black’s Law Dictionary — of which Garner is the latest editor — for guidance. I generally follow that advice, but I occasionally disagree with the dictionary’s recommendations for reasons discussed in this post.
Maxims of equity are commonplace legal principles that originated hundreds of years ago and became encapsulated in pithy phrases, such as “For every wrong there is a remedy.” Cal. Civ. Code § 3523.
“The law doesn’t concern itself with trifles.” This is an example of a maxim of equity.