Definition
In legal usage, "speaking" functions primarily as a modifier describing the character or scope of a legal instrument, motion, or procedural act. It signals that a document or action goes beyond the formal record or contains information not otherwise part of the pleadings.
1. Speaking demurrer. A demurrer that introduces facts not appearing on the face of the pleading in order to support the objection. Because a demurrer is meant to test only the legal sufficiency of the pleading as written, a speaking demurrer imports extrinsic matter and is generally improper at common law — the demurring party is confined to what the pleading itself discloses.
2. Speaking motion. A motion that relies on facts outside the pleadings to support its arguments. Courts must decide whether to treat such a motion as one for summary judgment (requiring notice and an opportunity to respond) or to strike the extraneous material. The speaking motion is the modern procedural descendant of the speaking demurrer.
3. Speaking order or judgment. A court order that goes beyond a bare directive and includes recitals of fact, reasons, or explanatory language — "speaking" to the circumstances. Sometimes used pejoratively when a court exceeds the appropriate scope of an order.
4. Speaking statute. A statute that is self-interpreting or declaratory in character, one that speaks directly to a question without need for inferential construction. Used occasionally in statutory interpretation contexts.
Common Language
Modern common usage (Wiktionary): "Used in speaking; expressive; eloquent; involving speech; having the ability of speech."
Historical common usage (Webster's 1913): "Uttering speech; used for conveying speech; as, man is a speaking animal. Seeming to be capable of speech; hence, lifelike; as, a speaking likeness."
The common meaning of "speaking" is simply about oral communication or lifelike expressiveness. The legal meaning pivots entirely: in legal usage, "speaking" describes the act of going outside a closed record or defined formal scope. A speaking demurrer is not one that is delivered orally — it is one that improperly introduces outside facts. The gap between ordinary and legal usage is wide enough to mislead a researcher who encounters the term without context.
Common Confusion
Speaking demurrer vs. general demurrer vs. special demurrer. A general demurrer challenges the legal sufficiency of a pleading on its face. A special demurrer objects to form or specificity. A speaking demurrer does neither cleanly — it imports outside facts, which is precisely why courts reject it. Researchers encountering all three terms in historical pleading practice should not conflate them; the speaking demurrer is procedurally defective in a way the others are not.
Speaking motion vs. motion supported by affidavit. Not every motion supported by external evidence is a "speaking" motion in the pejorative sense. The label typically applies when extrinsic facts are embedded in the motion itself to supplement deficient pleadings, rather than properly presented in an attached record.
Why It Matters in Research
The term appears most frequently in historical common-law pleading materials and in cases construing the boundary between demurrer practice and summary disposition. Researchers working in pre-code pleading sources — particularly 19th-century American and English equity practice — will encounter "speaking demurrer" as a recognized (and condemned) procedural maneuver.
In modern federal and state practice, the speaking demurrer survives conceptually in the Rule 12 context: when a defendant's motion to dismiss relies on materials outside the complaint, courts must decide whether to convert the motion to one for summary judgment. That conversion doctrine is the functional heir of the old speaking demurrer prohibition. Researchers analyzing this line of cases should track both the historical pleading term and its modern procedural analog.
The "speaking order" usage appears in appellate practice and enforcement proceedings. An order that "speaks" to its own reasoning may be more vulnerable to challenge, or may foreclose certain arguments on appeal, depending on the jurisdiction. This usage is contextual and not uniformly defined.
Researchers should also note that "speaking" in the constitutional sense — as in compelled speech, the right not to speak, or "speaking" as expressive conduct — is a distinct doctrinal register entirely. Constitutional speech doctrine does not use "speaking" in the pleading-law sense. Conflating these registers across research contexts is a common error.
Historical Dictionary Support
Anderson's Dictionary of Law does not define "speaking" directly but cross-references COLLOQUIUM, DEMURRER, IMPARLANCE, and SPEECH — a cluster that confirms the term's anchor in pleading and oral procedure doctrine. The colloquium and speech cross-references point toward defamation pleading (where a speaking or recitation of words in the declaration is required), while the demurrer cross-reference anchors the procedural meaning. Anderson's treatment is navigational rather than substantive.
Rapalje & Lawrence does not appear to carry a standalone entry for "speaking" in the excerpted material; the provided source content references sovereign power and is likely a cataloging artifact rather than a substantive definition. Researchers should not rely on Rapalje & Lawrence for this term without consulting the full volume directly.
Historical sources generally treat the speaking demurrer as settled and disfavored — the concept is defined more by what it is not (a proper demurrer) than by affirmative characteristics. This negative definition is itself useful: it tells the researcher that any early authority approving a "speaking demurrer" is either using the term differently or represents a jurisdictional outlier.
Encyclopedia Cross-Reference
Compelled Speech — The Right Not to Speak (Law Mind Constitutional Law Encyclopedia): Relevant for the constitutional dimension of "speaking" as expressive conduct, distinct from the pleading-law usage covered here.