Can you plead that? “It is what it is” (or “Hoc illud est quod est” because when in court, it helps to make this argument in Latin) doesn’t seem like much of a legal argument.
Seems Like You Can If You Say It in Latin
“It is what it is.” What does this ubiquitous phrase mean?
Famed author William Safire wrote about the phrase in The New York Times Magazine edition of March 5, 2006. His research showed it first appeared in a 1949 article by Nebraska State Historical Society President J.E. Lawrence in The Nebraska State Journal. Lawrence wrote:
“New land is harsh, and vigorous, and sturdy. It scorns evidence of weakness. There is nothing of sham or hypocrisy in it. It is what it is, without apology.”
Notwithstanding this linguistic pedigree, Safire writes that the phrase is a “deliberate tautology,” “designed to define itself by repetition of itself [and] … used to deflect inquiry with panache.”
According to TwoMinEnglish, the sentence means “that a situation exists in its present form and cannot be changed, so it must be accepted as it is.” Despite its pervasive use, this string of words is widely criticized as meaningless.
The Judge Said What?
“It is what it is” doesn’t seem to be much of a legal argument. But that may have changed with the Delaware Superior Court opinion in Noble Eagle Sales, LLC dba Shooter’s Choice v. Mesa Underwriters Specialty Insurance Company et al.
The underlying case arose from the rental of a gun from a shooting range. The renter used that gun to commit suicide. The family sued the shooting range, which called upon its general liability insurer for a defense and coverage. Mesa denied coverage on the grounds that the policy excluded the rental of sporting equipment. Both sides filed motions for summary judgment. The pivotal issue was whether a gun rented from a shooting range is sporting equipment.
The court’s interpretation of the insurance contract is multifaceted and relies heavily on dictionary definitions. According to Merriam-Webster, “anything used in a sport can be sporting equipment depending on the context,” says the opinion.
The Conclusion, in Latin
The court found, therefore, that the term “sporting equipment” is ambiguous. Regardless of how it is used, “a gun or firearm is always a weapon; foundationally, elementally, hoc est quod est (it is what it is).” Therefore, Noble Eagle Sales was entitled to coverage.
Got that, counsel? When interpreting a contract term, look to the foundational, elemental meaning. No convoluted logic game can change that. Because it is what it is.
It helps to make this argument in Latin. My research shows that the correct Latin wording is Hoc illud est quod est. To prove it, Amazon offers 11 pages of merchandise emblazoned with this sentiment. Maybe you could wear one of the T-shirts to court.
And in your argument be sure to make copious use of your dictionary.
More Writing Tips
Find more good ideas for improving your legal writing and communications skills in “Get to the Point” by Teddy Snyder.
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