How Golden Is Silence?

By: Benjamin G. Shatz
– Daily Journal

“A concept learned early in law school is that silence is not acquiescence. This idea appears in California’s jury instructions, CACI 310, which says that if a party does not respond to an offer, then that inaction is not deemed an acceptance, unless the parties understood silence to be acceptance. A related Latin proverb is Qui tacet consentire videtur, ubi loqui debuit ac potuit – He who is silent, when he ought to have spoken and was able to, is taken to agree. As discussed in People v. Clemons, 153 Cal. App. 2d 64, 72 (1957), although the venerable expression ‘silence is consent’ may have ‘some truth’ in certain contexts, ‘there must be and are times when silence is anything but consent.’ Let's see how these ideas play out in appellate practice.”

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