To Vel Non or Not To Vel Non, Vel Non

Published on: December 1, 2009

What is it with lawyers and latin phrases? Don’t we charge our clients enough? I would be particularly embarrassed if I had to take a phone call from a client to explain that what the phrase in a legal brief or a letter I just charged them for means, in english. Those who know me, know that I am more likely to use a creative expletive than a latin phrase or an obscure quote from some other dead language. It may not get me any awards for style or grace, but I take comfort in that I am usually easy to understand, like it or not.

Recently, I received a letter from another lawyer that contained the phrase vel non. I was of course perplexed. It was used in a sentence as follows: “Please advise if the Board took a vote to proceed with the action, vel non”. Even more curious than opposing counsel’s apparent need to use this obscure phrase was his decision to highlight the phrase in italics. I assume he did this to highlight his knowledge or brilliance, though I suppose it is possible that there is some rule in “Elements of Style” that words from dead languages have to either be underlined or placed in italics.

Anyway, I think it took me twenty minutes or so to locate and dust off my old Legal Dictionary (the phrase is apparently so old that its only present day usage is as a Five Star Hotel and Bar in Venice, thus googling the phrase proved pointless). Finally, to my surprise and exasperation I learned that the phrase vel non means “or not”. So, I went through all that trouble to find out that opposing counsel had asked me if the Board had taken a vote “or not”. Apparently, opposing counsel was not aware that he could have used the word “whether” [the board had taken a vote]. In fact, I suspect that he would have gotten the same answer if he had omitted the phrase entirely.

Worse still, it only resulted in my torturing opposing counsel (and everyone in my office for that matter) with the use of the word. The letter he received back from me used the phrase vel non twenty five times, vel non. Every condominium I represented became the Hills at Vel Non, or the Elms at Vel Non. The powers that be had to stop me from printing MEEB VEL NON t-shirts and mugs, though I am sure they would have been a huge merchandising success, vel non. Apparently though, I did not set any records.

A few years ago, someone, with a devilish intent, vel non, took a word processor and analyzed all the opinions for a given period of years issued by the United States Court of Appeals for the 2nd Circuit. They counted the frequency of words and phrases. There was one judge who was stuck on “vel non.” He used the phrase hundreds of times, and more often than all the other judges combined. The study was published in the New York Law Journal, a daily paper read by nearly every lawyer in the New York City legal world. I am not sure whether, vel non, that judge continued to use the phrase following the article, vel non.

Though I suspect that many lawyers and other academics will continue to seriously vel non, I hope the rest of us will be less serious and less pretentious. But for now, the age old debate of whether to vel non or not to vel non will apparently rage on well into 2010, vel non.

Happy Holidays, vel non!