I’m looking at a court decision with a caption in the form –
Alias, a minor, by his next friend John Doe v. Defendant
I vaguely recall seeing similar circumstances, but don’t think I’ve encountered the “his next friend” usage before. How else might such a case be titled in common law systems? I’m sure there are applicable Latin phrases.
Most common law systems have done away with the “next friend” terminology and now use a phrase like “litigation guardian” or something similar. “Next friend” was a technical legal term that didn’t make it clear why one person could sue in the name of another; phrases like 'litigation guardian" make the relationship clear and help to improve the accessibility of the legal terminology.
I can’t remember if “next friend” was a direct translation from a Latin or Law French phrase, or if it just arose in the English common law procedure.
Hereis a book about a woman who acts as “next friend” to a foster child and describes it as, in this case, a person who acts legally on behalf of a minor.
Other than “legal guardian” you can also be “natural guardian” of a minor or an “administrator” of an estate.
Examples:
MOTHER, individually and as parent and natural guardian
of CHILD, an infant under the age of 14 years,
WOMAN, as administrator of the
ESTATE OF SISTER, Deceased.
Nothing Latin springs to mind then?
In England and Wales its called “Litagation Friend” these days. I think it was “next friend” before.
The use of latin is VERY strongly disfavored in legal paperwork and legal writing in general.
Come on, Hello Again, that’s a modern guideline. It’s no answer to the question of whether there is or was a legal Latin expression to cover the situation.
Looks like it came from the law French term, prochein amy (or ami).
Thanks, NP.
du rien. 
Since when? I can list a bunch of legal Latin phrases still in common use:
[ul]
[li]nolle prosequi[/li][li]ex parte[/li][li]habeus corpus[/li][li]mens rea[/li][li]de facto[/li][li]de jure[/li][li]obiter dictum[/li][/ul]Do lawyers not use them anymore?
Federal Rule of Civil Procedure 17(c)(2) provides that: “A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem — or issue another appropriate order — to protect a minor or incompetent person who is unrepresented in an action.”
Essentially, a “next friend” is a person who is not formally appointed a guardian or other type legal representative, but rather takes it upon him or herself to sue on behalf of someone else who is unable to sue on his or her own. Once a next friend brings a case, the court must then determine whether the next friend is in fact an appropriate representative. If not, or if the court determines that any party is not properly represented in a case, the court will appoint a “guardian ad litem” (guardian for the purpose of litigation) who will make sure that the party’s rights are protected in the litigation, though not serve as the person’s guardian or representative for any other purpose (unless separately appointed as such). On very common situation where a guardian ad litem would be appointed is an a custody dispute where minor children might have a guardian ad litem appointed on their behalf to make sure their interests are protected.
An example of “next friend” litigation is the Hamdi v. Rumsfeld case on enemy combatant status. The case was titled “YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next friend of YASER ESAM HAMDI, PETITIONERS v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al.” It a habeas corpus petition brought on behalf of Yaser Esam Hamdi, who was then being held in a naval brig without access to counsel or the outside world. The petition was filed by Esam Fouad Hamdi, Yaser’s father, as “next friend”, and the district judge ruled that Esam was a proper next friend and allowed the petition to proceed, a position eventually upheld by the US Supreme Court.
[ul]
[li]pro se[/li][li]amicus curae[/li][li]mandamus[/li][li]certiorari[/li][li]actus reus[/li][li]ad hoc[/li][li]in limine[/li][li]ad litem[/li][li]bona fide[/li][li]ex post facto[/li][li]flagrante delicto[/li][li]in absentia[/li][li]in loco parentis[sup]1[/sup][/li][li]duces tecum[/li][/ul]
And that’s just from memory. (But then again I like to collect Latin phrases.) However, it’s worth noting that you don’t often see modern legal writing with actual Latin sentences in it; just the multitude of phrases and jargon that survive.
[sub]1. Does not mean your parents are crazy[/sub]
Some of these Latin phrases are used to describe some of the most basic aspects of criminal law or civil procedure, and so they will likely survive for the foreseeable future. However, some jurisdictions are making a conscious effort to eliminate the use of Latin terms in their statutes, which will gradually reduce the amount of Latinisms.
For example, in Canada, standard drafting practice at both the federal and provincial levels is to use English (and French) terms in preference to Latin. About twenty years ago, as part of a major statute revision, the federal government removed almost all Latin terms from the federal statutes. As well, law schools and bar courses emphasise the use of clear language and avoiding unnecessary Latinisms.
Also, as the law changes and develops, the legal concepts referred to by a Latin name may be eliminated and replaced with a new legal process, with a modern English (or French) name, instead of Latin. For example, in Canada at the federal level and in some provinces, the old common law prerogative writs to control administrative actions (e.g. - certiorari, mandamus) have been replaced with a single statutory remedy, called administrative judicial review. There are still references back to the common law origins of the concepts embodied in administrative judicial review, but the writs themselves and their Latin names have been abolished.
Of the two lists given by Derleth and friedo, I would say that the following are unlikely to disappear anytime soon, in Canada at least:
[ul]
[li] ex parte[/li][li] habeus [sic] corpus[/li][li] mens rea[/li]actus reus
[li] de facto[/li][li] de jure[/li][li] obiter dictum[/li][li] amicus curae[/li][li] ad hoc[/li][li] in absentia[/li][li] duces tecum[/li][/ul]
The following terms have been eliminated, in whole or in part, through changes to the law or revisions of the language used in statutes:
[ul][li] nolle prosequi[/li][li] pro se[/li][li] in limine[/li][li] ad litem[/li][li] bona fide[/li][li] ex post facto[/li][li] flagrante delicto[/li][li] in loco parentis[/ul][/li]
Mandamus and certiorari survive, but in varying degrees depending on the whether there has been statutory reforms to the language.
I agree that Latin should not be used, if possible, in order to make legal proceedings more understandable by laypeople. That said, I’m still using them in certain situations.
Two that haven’t been mentioned that I’ve recently used:
De minimis non curat lex (the law does not concern itself with trifles); and
Res ipsa loquitur (the thing speaks for itself) - but I only used that one to say that the evidence didn’t just boil down to that - there was more evidence.
There was a young fellow named Rex,
With diminutive organs of sex.
When charged with exposure,
He replied with composure,
“De minimus non curat lex.”
One of the most famous recent cases involving “next friend” status was the Newdow pledge case: ELK GROVE UNIFIED SCHOOL DIST. V. NEWDOW
Here’s a relatively recent “wrongful life” case that I studied in Advanced Torts, where the usage is “by her tutor”: Harriton v Stephens 2006 [HCA] 15.
Now that’s interesting, Cunctator - “tutor” is a term used in the civil law systems to mean a type of guardian for an underage person. Any idea who it got introduced into Australian court procedure?