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Bryan Garner on legal neologisms and how 'Black's Law Dictionary' keeps up (podcast with transcript)

By Stephanie Francis Ward

July 7, 2014, 1:30 pm CDT

Podcast Transcript

Stephanie Francis Ward: Language is a living thing. New words and phrases—or even grammatical shifts—mean that a lexicographer’s work is never truly complete.

Bryan A. Garner: Our to-do list is still very long. I have 2500 terms yet to be defined.

Stephanie Francis Ward: I’m Stephanie Francis Ward. Today I’m speaking with Bryan A. Garner, the editor in chief of Black’s Law Dictionary, and president of LawProse Inc.

When we return, he’ll share with us what goes on behind the scenes to produce Black’s Law Dictionary—and give us some sneak peeks into what fresh material the newly released 10th edition has to offer.

Advertiser: This ABA Journal Podcast is brought to you by Westlaw Next. Folder sharing in Westlaw Next enables you to tap into previous research across organizational boundaries like never before, saving you time from reinventing the wheel. Learn more at westlawnext.com.

Stephanie Francis Ward: Black’s Law Dictionary just came out with the 10th edition, correct?

Bryan A. Garner: Yes.

Stephanie Francis Ward: OK. What are some of your favorite words that were added to the 10th edition?

Bryan A. Garner: Well, there are about 7,500 new terms in the 10th edition. Favorite words? I’m rather partial to some that you might think would’ve been in Black’s Law Dictionary for a very long time, but never were included. Among my four favorites are reason, reasoning, rationality, and rationale, and those terms never had been in there before.

You might say, “Well, why weren’t they?” We tried to get in all words important to lawyers and judges and used by legal scholars, but it takes a heck of a lot of work and review and it takes time.

Stephanie Francis Ward: What’s your work process for finding new words? Do you keep a list between the different editions? Do you have a board you take it to? How does that work?

Bryan A. Garner: Well, I’m essentially the board, but my colleagues and I, we scour legal sources for words and phrases. That includes not just judicial opinions, but also legal scholarship and treatises. We scour journal articles and law-related news magazines. This is the way professional lexicographers tend to work. And then look at what we have in Black’s to see whether we’ve already covered the terms that we’re finding.

We also engage in a systematic reading program of legal treatises to be sure that all the different practice areas are well covered, and we’re always on the alert for legal slang as well.

Stephanie Francis Ward: You mentioned words from specific practices. Do you keep a list and, say, if a word comes up like a hundred times in the past five years and it’s not already in the Black’s dictionary do you think, “Oh, that would be a good one to add?”

Bryan A. Garner: Well, we don’t wait until we have a hundred citations. Once we are aware of a word, we do some looking at Westlaw and Lexis as well as at our files and if it has been used with any frequency at all it will tend to find its way into the dictionary.

But our to-do list is still very long. I have 2,500 terms yet to be defined. We did what we could with the most—what we thought to be the most important words for Black’s 10th, but I have a constantly growing list of potential head words in Black’s Law Dictionary.

In this one we added a lot of new dog entries. There are all kinds of different kinds of police dogs listed.

We also have all kinds of bombs listed that are new for the 10th edition: cluster bomb, firebomb, letter bomb, petrol bomb. Now, you might say, “Well, do those really need to be in the law dictionary?” But they do appear in various criminal contexts and it seems useful to include them.

We also have a lot of scholarly terms that you simply would not find outside scholarship, such as feminist jurisprudence and jurisprudence of difference. That’s an interesting phrase.

These are new phrases, and new terms and phrases are called neologisms. And so a lot of neologisms that have only recently appeared, let’s say since 1990, have made their way into the book; but it’s not as if we simply put a whole lot of slang into the book. But we have included some terms like judgitis and—

Stephanie Francis Ward: What does judgitis mean?

Bryan A. Garner: Well, I’m particularly proud of the definition of judgitis. I don’t have it before me, but it’s something like “an emotional disequilibrium in which a judge mistakenly equates respect for his or her office with personal grandeur.” It is something like that.

Stephanie Francis Ward: OK.

Bryan A. Garner: So it’s basically a judge—the syndrome of a judge feeling full of him or herself.

Stephanie Francis Ward: Can we really boil it down and say “a judge who takes him or herself too seriously.”

Bryan A. Garner: Yeah, but it’s something more than that as well. But that—boiled down, that’s close.

Stephanie Francis Ward: How do you decide on the slang terms? I believe benchslap is another term that made it this time, right?

Bryan A. Garner: Yes. Well, that was a word that I was unfamiliar with. It kept on coming up in things that I was reading, and then I found out that an assistant U.S. attorney in New York named David Lat had coined that and a few other words, but it was making its way on the blogs all the time, and so I decided to include it.

I think it would be difficult to understand current legal blogs—and therefore to some degree even legal conversations of many lawyers—if you didn’t understand a word like benchslap, which is simply some kind of public comeuppance by a judge, typically of a lawyer who appears before the judge who’s being in some sense figuratively slapped down.

Stephanie Francis Ward: OK. And you mentioned with slang terms: Do you think that in some courts it might—in the right setting of course—it might be OK to use some slang terms in a brief or maybe even in an order?

Bryan A. Garner: I think it’s possible, although slang—I wouldn’t say it’s impossible, but I don’t include slang in my briefs. I wouldn’t do that. That’s precisely why we have the label slang. There are some lexicographers who are debating whether to cut the label slang altogether. I served on a committee this last summer looking at the future of the Oxford English Dictionary. And I was the only lexicographer out of 50 in the room who wanted to retain the term slang. Most of them want to do away with the distinction of slang terms versus standard terms, but it is a broad category.

It strikes me as being a useful one, and if nothing else, a warning to the user of the dictionary that this is a rather low or jocular term. It is not a term generally used in first-rate print sources.

But you don’t altogether exclude terms from dictionaries merely because they fall into a category like that. And the percentage of slang terms in Black’s Law Dictionary—my guess is it is less than a tenth of 1 percent of the terms in Black’s are labeled slang.

Stephanie Francis Ward: Can you tell me, how does your vetting process work? Is it something where everyone who’s involved shares their opinions in person? Do you write letters or briefs to each other? How does the vetting process work?

Bryan A. Garner: Well, a lot of people somehow think that lexicography is a very leisurely process. It is not. Throughout working on Black’s 10th I had five lawyer colleagues. So there are six lawyers on the project, two paralegals, and one intern with a bachelor’s degree. And basically what happens is, a term is suggested; one lawyer at LawProse researches it; and if it’s used with any frequency, goes ahead and drafts an entry.

And I typically have a daily quota, I have an hourly quota I want every lawyer—when we are working on Black’s intensively, I’m expecting every lawyer to do at least six definitions, six entries per hour; so there’s a kind of quota. And if you’re working eight hours, you’re supposed to come up with 48 terms that day.

Now, that is actually difficult to achieve because some terms become very—they’re complicated because they have multiple definitions, and then there’s historical research to be done on the word. But for a first cut, that is usually not a bad guideline. I can pretty reliably do 50 terms in an hour, but it depends.

We have to look at a lot of sources. That’s only a beginning point. Once we have a draft there are two rounds of substance revisions by lawyers other than the original drafters. So whoever drafted the definition originally—it gets looked at very skeptically by two other lawyers and then there are multiple rounds of editing and proofreading by everybody on the team. So there are these huge word lists that are being produced, and it is a multi-layered process of vetting.

Stephanie Francis Ward: I’m curious. You mentioned the research of the words initially. Does the research just involve reading, or do you and your staff maybe interview lawyers in certain practice areas to make sure you really have the meaning correct?

Bryan A. Garner: Well, we look at law reviews and articles. That’s actually what’s more useful for the most part than interviewing. Or sometimes I will be teaching a CLE program. I teach dozens of CLE programs every year on advocacy persuasion, legal drafting, contract drafting, that sort of thing—and a term will come up that if I’m unfamiliar with it, I will have a lawyer in the room draft an explanation of what that word means, and then we’ll talk about it over lunch—a small group of us.

And I may leave a CLE with three or four new terms that I take back to Dallas, and then we independently look at the literature to be sure that there are print sources that in fact corroborate the definition that we’re working with. But typically I’ll have to rewrite the definition substantially in the first place, merely to get it worded correctly.

But there are lots of sources like that. I have lots of lexicographic allies. I must get probably, oh, five emails a day relating to terminology, and they’re very useful.

That’s something that I learned from my friend the late Robert Burchfield, editor of the Oxford English Dictionary, is you want to cultivate allies who will send things into the dictionary department to be considered for inclusion. And anybody who cares to, my email address is [email protected]. That goes directly to me, and we welcome inclusions in Black’s Law Dictionary. I may use it in one of my other books, such as Garner’s Dictionary of Legal Usage. But these things are very helpful to a lexicographer.

Stephanie Francis Ward: I’m going to assume that when you go to events you must meet four or five people who say, “Bryan, I have a word for you.”

Bryan A. Garner: It happens all the time. I love it. And the mere fact that there are some omissions—occasionally somebody will come up to me very gloatingly suggesting that, “Oh, you missed this.” Well, we have included so very much and the book is—Black’s Law Dictionary in this 10th edition has so much historical depth and such breadth of coverage that, yes, I don’t consider it any great shame that there are other terms that could be included. I want to know about them, always, for the next edition. In fact, that’s partly how the 10th edition got to be so very full and well developed.

But you could always play that game with any lexicographer and it’s nothing to be ashamed of that some term is not included. The main reason for excluding most of the 2,500 terms that are still on the list to be done is simply that we thoroughly drafted and vetted—what, 7,500 new terms? And it was impossible to reach them all. So you try to do triage and get to the ones that absolutely need it.

Somebody just sent me an email yesterday about the word chaste—that I need include an entry for the terms chaste and unchaste—and I agree. They ought to be in Black’s Law Dictionary because they have legal significance, those terms, in certain ecclesiastical and family law contexts; and so my intention is to include them.

Stephanie Francis Ward: I’m curious. Is some of the reason that you enjoy working with these new words is—it seems to me, particularly those perfect new words that everyone seems to understand it for the most part—do you enjoy working with these new words because it means when you write you can use less words to explain yourself?

Bryan A. Garner: Right. Well, also a neologism comes about because it does pithily express an idea for which we had no other term for, and so expression does tend to become more and more economical.

But I think words are just a joy in themselves. Lawyers are professional workers in words. We’re professional writers of nonfiction, and I think any serious writer needs to take words very seriously: Collect them, think about them, and be a master of them. And so to be a lexicographer in this field is particularly interesting.

Some people harrumph about neologisms. They always have. And I try to be pretty conservative about the inclusion of slang, as I say. I don’t rush to include neologisms until they’ve shown some staying power in the vocabulary.

I think probably the most fertile field of new terms is in fact legal scholarship more than judicial writing. And that is an aspect of legal writing that I think earlier editions of Black’s slighted a little bit—did not include enough of; because I think Black’s has always traditionally—like other law dictionaries—had a litigation bent, and I’ve tried to broaden the book.

Stephanie Francis Ward: OK. Thank you so much for your time. I really appreciate it.

Bryan A. Garner: Stephanie, thank you. I enjoyed talking to you.

Advertiser: This ABA Journal Podcast is brought to you by Westlaw Next powered by WestSearch, the world’s most advanced legal search engine delivering the best results in seconds. Learn more at westlawnext.com.

End of transcript.

Edited on July 10 to add the transcript.

Language is a living thing. New words and phrases—or even grammatical shifts—mean that a lexicographer’s work is never truly complete. This month, we’re speaking with Bryan A. Garner, the editor-in-chief of Black’s Law Dictionary, president of LawProse Inc. and author of the ABA Journal column Bryan Garner on Words. He’ll share with us what goes on behind the scenes to produce Black’s Law Dictionary, and give us some sneak peeks into what fresh material the newly released 10th edition has to offer.

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