One of the cute things about first-year law students -- and, trust me, it's indeed cute -- are the tiny little verbiage mistakes they make. For example, they often mispronouce words that lawyers easily know how to pronouce; which totally isn't the student's fault, of course, since it's probably the first time they've ever seen the word, which is why it's "cute" when a first-year student does it but horribly embarrassing when, say, a 30-year attorney does it.
It's also cute -- and, again, this is totally common -- when they use words in an improper context, again with no preexisting reason for the student to necessarily know the "right" context. To take what is perhaps the most common example (in my experience): first-semester law students in my Civil Procedure class will sometimes say that the jury found the defendant in a civil case "guilty" and awarded damages, at which point I gently remind them that "guilty" is a criminal law concept and that in the civil context we don't use that word, and generally say instead that someone's "liable" or not liable.
So I get that I have to sometimes say that to first year law students. But, until today, I didn't think I'd be in a position to remind the Appellate Division of that fact.
Judge Fleming makes this nomenclature error (IMHO) not just once, but twice. The first time is in the very first sentence of the opinion, which reads: "After a bench trial, the trial court found appellants guilty of unlawful detainer." Yeah, that should probably read "liable" rather than "guilty." Maybe it's a little bit confusing because of the whole "unlawful" part of "unlawful detainer," but still, it's a civil case, not a criminal one, so we don't find people "guilty" or not guilty. Ditto for the second time, later in the opinion, in which he says: "A tenant of real property is guilty of unlawful detainer. . . ." and then lists the elements.
It's a style thing, of course, so to each their own. If you want to use "guilty" in a civil case, be my guest. And if your background is in criminal law, I get it: that's the term with which you're probably the most familiar.
But, for me, nah. Delete the whole "guilty" verbiage in civil cases.
POSTSCRIPT - Several readers with far more knowledge than me in landlord-tenant law wrote to say that practitioners in the area -- and the underlying statutory scheme itself -- expressly use the term "guilt" in the unlawful detainer context; for example, in CCP 1161. There seems like a fairly broad holdover in this arena from the old feudal days; e.g., we still call 'em "landlords". Good to know; you learn something every day! Personally, I still might move on from this verbiage and adopt the more modern "liable" way of saying things, but as I said, to each their own.
