Fight The Hypo

We here at Fight The Hypo are on the cutting edge of legal reform, committed as we are to justice, freedom, and the rule of law. Here’s an example of our innovative and forward-looking thinking for dealing with the critical challenges facing our legal system.

Replace the obscure, outdated Latin phrase “res ipsa loquitur” with the more modern English phrase “it is what it is.”

Granted, I have just learned what “res ipsa loquitur” means. So, while I may have less experience than more seasoned attorneys, what I’m asking for here is a vote for change we can all believe in. And while the common law’s currency is experience, in this case, experience is merely a millstone dragging the law into the depths of confusion.

If I had been there when they chose the phrase, I would have voted differently. In fact, I was always against granting judges the blanket authority to invent Latin phrases. I could have told them it was a losing cause and a dying language. But we have to look forward, not back. So, here’s my case for why centuries of common law parlance must yield to new realities we face.

First, what is the deal with the phrase “it is what it is” anyway? I hate myself a little more each time I use it. It means nothing really. It’s either, as one commenter suggested, used simply by people “who want you to think that the way life unfolds is the way life unfolds, and since they can’t do anything about it they’re just going to let it happen and see how it all pans out.” Or it’s just a a hollow aphorism employed when we simply have nothing original to say or can’t find the words and energy necessary to convey what “it” actually “is”?

But law school is good for something. I’ve found a way to give that phrase meaning while simultaneously making the common law more accessible to the layman. By substituting “it is what it is” for res ipsa loquitur we would drop an inaccessible Latin phrase while putting an inane phrase of pop culture to good and meaningful use.

When translated from the dead language res ipsa loquitur means “the thing itself speaks ” or, more commonly, “the thing speaks for itself.” As a doctrine, res ipsa loquitur is used where the occurrence of certain accidents is unlikely but for the negligence of the party who had exclusive control over the thing or instrumentality causing the harm. So, you might say, if a certain thing has occurred that “it is what it is.” Or… negligence is negligence, it speaks for itself.

The good thing about how res ips works is that the plaintiff relying on the doctrine must prove that a reasonable person would believe that the accident would not have occurred but for the negligence of the defendant. It’s not enough to just say, “Well res ipsa loquitur, now give me a check for damages.” That’s where the force of the common law can really help “it is what it is.”

This contemporary phrase places no burden on the speaker to prove or describe anything. How many times have you heard an interview where the speaker stammers on about some situation only to end with “it is what it is” as if that somehow ties everything together in a cogent, unimpeachable analysis of the situation at hand. Backing this phrase with a burden of persuasion would bring our beloved “it is what it is” into the realm of substance, requring the speaker to actually explain why the obvious is so obviously true - without requiring us to adopt yet another phrase.

Of course, we must ask, “Why on earth would we do away with a phrase used for so long and with so much effectiveness?” To that I say, we’re not really changing the law, are we? We’re merely suggesting a change to a phrase that has lost meaning for most laypeople in order to confer meaning on a meaningless, though potentially useful, phrase. With our recommendation, the law itself doesn’t change. All that changes is how we describe it. There is also a flexibility in using “it is what it is” to describe a situation so apparent that it must be no other way (while still requiring the application of an objective standard of proof).

In that way, more people come to understand not only the nature of the common law action for “it is what it is” but also consider more carefully their use of tired and meaningless popular parlance.