Saturday, February 28, 2009

Learned Brother, where art thou?


The other day ABL referred to opposing counsel in court as "my learned brother." The presiding judge remarked that he had never heard that phrase before. Although uncommon, ABL wondered why (and when) the practice of so referring to one's adversary fell out of mainstream parlance. Although the practice remains prevalent in other common law jurisdictions, it has declined in the United States (perhaps in correlation with the purported decrease in collegiality and civility the bar has experienced over the last several generations). The practice was common in the U.S. at the turn of the last century. It appeared in a New York Times article from 1895 discussing the entry of learned sisters into the profession. (http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9A00E4DD103DE433A25755C1A9609C94649ED7CF).
ABL's quick perusal of case law shows that the practice continues to breathe in some parts of the country (especially Louisiana), although it appears most frequently (not surprisingly) where judges refer to other judges. A Google search also unearthed recent usage in a February 2009 review of Third Department decisions here in New York (http://www.albanycountybar.com/3rdDept.htm).




5 Comments:

At 6:50 AM, Blogger Buffalopundit said...

Used it _all the time_ in Massachusetts. Only one time did I use it since coming to NY. And that was because I couldn't remember my opponent's name in that instant.

 
At 9:29 PM, Blogger Bill said...

I am adopting this. I have used "counsel", but "my learned brother" is much, much better.

 
At 8:07 PM, Blogger Erin said...

In Canada (and incidentally, in the ICJ) they use the term "my friend" to refer to opposing counsel... this actually tripped my team up in moot court last year. Our adversaries (or not, seeing as how Canada has a non-adversarial system) were talking about classified documents that they couldn't review because "they were still in the hands of [their] friends." I thought to myself, "well if your friends have these documents why don't you just ask them nicely to see them?" Took me another half-second to realize their "friends" were actually my teammate and I...

 
At 7:56 AM, Blogger Jeremy A. Colby said...

I have also used "learned sister"

 
At 1:44 PM, Blogger Brian said...

Used in the US Supreme Court quite a lot, especially by Justice Alito when referring to a counsel's adversary - "your brother argues...", and by the counsels themselves - "my brother on the other side argues...". This does not seem to apply to US amici though, who are usually called simply "The United States", unless its the Solicitor General himself, in which case its "General (Verilli)'s point...". I think the use of "brother" in such an adversarial context is beautiful

 

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