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Washington Lawyer

A Stroll With Mr. Black’s Ninth

From Washington Lawyer, February 2010

By Jacob A. Stein

spectatorWhen I received the publication notice of the Ninth Edition of Black’s Law Dictionary, there came to mind Mr. Daniel Jackson Oliver Wendel [sic] Holmes Morgan. He practiced law in the District of Columbia for a year in the early 1960s. He was an impostor using the name Lawrence Archie Harris, a member of the D.C. Bar who had moved away.

I saw Morgan/L. A. Harris in court during one of his criminal cases. He was gaunt, dressed in black, with a striking, erect posture. He had a remarkable vocabulary, using the right words in the right places.

Several lawyers knew Morgan/L. A. Harris as someone who had served a prison sentence. He got into a dispute with one of the lawyers who knew that Morgan/L. A. Harris was an impostor. The gossip around the courthouse was that the dispute became bitter and ended up with Morgan’s true identity being exposed.

Morgan was indicted and convicted on a number of counts, including perjury and taking money from clients, by pretending to be a licensed attorney. Morgan v. United States, 309 F.2d 234 (1962).

A newspaper reporter asked Morgan how he was able, with no legal education, to perform so well in court. Morgan said that when he was in prison, he read Black’s Law Dictionary from cover to cover, twice.

It would have been of interest to Morgan to know the work of the Johnson O’Connor Research Foundation, which demonstrates that success comes to those who know a lot of words and, more importantly, the exact definition of each word. Johnson O’Connor did studies proving its point.

Most lawyers have an extensive vocabulary—extensive, yes—but do we know the exact definition of the words we use? As time goes by, we lose the sharp accuracy of what each word means. For example, we frequently use the word fraud but if we were asked to define it, there would be trouble. Let’s look up fraud in Black’s Ninth Edition, which is now on my desk, and compare it with the weak definition I have in mind when I use the word:

1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime…. 2. A misrepresentation made recklessly without belief in its truth to induce another person to act…. 3. A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment…. 4. Unconscionable dealing; esp., in contract law, the unfair use of the power arising out of the parties’ relative positions and resulting in an unconscionable bargain….

This is followed by definitions of 42 types of fraud, ranging from actual fraud to wire fraud. To follow Johnson O’Connor’s prescription, we must keep Black’s Law Dictionary on our desk and frequently refer to it.

At a time when I was using the words blackmail and extortion interchangeably, I was corrected. I was told that extortion is getting money by using threats that are against the law such as “I will break the windows of your store unless you pay me ‘for protection.’” Blackmail is different. It is a way of getting money by other means, such as threatening to give someone’s wife the compromising pictures of the girlfriend.

I am trying to originate a name for the type of person who takes pleasure in correcting others. Is he a snob or someone who, two days earlier, had been corrected when he fumbled the word? If anyone has the word that describes such a person, I would like to have it.

My guess is that Bryan A. Garner, the editor of Black’s Ninth Edition, probably has the word. He is a master neologist and he is clever with a portmanteau.

He has put between the covers of this big book (with the help of a list of impressive consultants) what might be called a compressed version of Corpus Juris and American Jurisprudence.

This bold, new edition continues the work begun in 1891 by Henry Campbell Black. Mr. Black would not recognize the book that still bears his name.

In addition to definitions, Black’s has more than 2,000 quotations from scholarly works as well as numerous case citations.

Nevertheless, if you have old dictionaries, do not discard them. I recently read that Justice Antonin Scalia cites from Webster’s American Dictionary of the English Language (1828), James Buchanan’s Linguae Britannicae (1757), Nathan Bailey’s Dictionarium Britannicum (1730), John Kersey’s A New English Dictionary (1702), Thomas Sheridan’s A General Dictionary of the English Language (1780), and John Walker’s Critical Pronouncing Dictionary (1791).

Those of us who like to read and use legal maxims on a regular basis will be pleased to find in Black’s Ninth, at page 1868 et seq., the largest collection now available. Garner says legal maxims “sometimes express surprising insights—and these from ancient writers. Though they will not clinch arguments, they will delight many readers who have a historical bent.”

That is why I like them. Legal maxims represent the common sense of the law. For instance: “To conceal is one thing, to be silent another.” And, of course, “A person cannot be judge in his own case, because he cannot act both as judge and jury.” And just one more, picked at random, “Custom is the best expounder of the law.”

Now I must get back to Mr. Black’s Ninth to read more maxims and to tighten up my definitions.

Reach Jacob A. Stein at jstein@steinmitchell.com.