Leland Communications
Legalese
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In A Manner of Speaking
One common criticism of lawyers’ writing is that we use words in ways they were not meant to be used; another is that we use words that don’t exist in real English. While these complaints are valid, they should not be taken too much to heart. We should avoid legalese, but we also need to recognize that it is a language with words that often communicate more clearly and concisely than English would ... as long as the reader understands legalese. Through usage, many words have assumed meaning— or a new meaning—for lawyers. As long as you can be sure that the meaning you intend is getting through to your reader, you should not feel handcuffed just because that is not the meaning the dictionary gives.
You don’t expect some legalese words to appear in the dictionary, because they have no meaning outside the law--tortfeasor, for example, or indemnitor. Other words seem like they ought to be part of everyday language, but they don’t appear in the abridged dictionaries we use every day. Conclusory is a perfectly fine word, but it’s not in my Webster’s; neither is meritless. But don’t let that stop you from using these words.
Some words appear in the dictionary but the definitions don’t fit the way lawyers use them. Take, for example, the word propound (please!), as in “We propounded 67 interrogatories and 22 requests for admission,” or, more generally, “We will propound discovery on the other defendants after we depose President Bush.” The dictionary says propound means “to offer for discussion or consideration,” as Rod Serling did on The Twilight Zone. It comes from the Latin for “to place before.” To a certain extent, that is what we do with discovery--place it before the other side and see how they respond. But what is really going on is that lawyers have given a new meaning to propound. It means to serve discovery on the other side and ask them to respond. You know it, I know it, the court and the other side know it. Funk Wagnall if he can’t take a joke.
What does this discussion mean for the points made in Strunk & White, Fowler and every other usage book that encourages you to be faithful to the meaning of each word you use? For example, I’ve advised you not to use state to mean say and to pay attention to the difference between therefore and consequently. But state is not legalese for say, and it does not express the same idea more concisely or clearly. Similarly, the confusion between therefore and consequently is not a product of legal usage; everybody mixes those words up.
In The Elements of Legal Style, Bryan Garner notes that the people who write dictionaries are quick to include new words from science and medicine, but reject words that have had accepted meaning in law for centuries. “The problem is not that lawyers stray from the accepted English vocabulary,” says Garner, “but that our lexicographers have failed to keep pace with legal coinages.”
Capital Crimes
When do you capitalize Court? When do you capitalize Plaintiff?
These questions are answered by the Bluebook, which does not make them stupid questions, just easy ones to answer.
1. Capitalize “Court” in three circumstances:
(a) When naming any court in full.
the First District Court of Appeal
Alameda County Superior Court
but
the court of appeal
the superior court
the court in Sindell
(b) When referring to the U.S. Supreme Court.
(c) When referring to the court that will be receiving the document.
The Court should grant review of the trial court’s ruling.
Some people want to capitalize court every time they use it; others whenever they are referring to a holding; and many when they are clearly talking about a specific person, the judge: “The Court flew into a rage and found everyone within earshot in contempt.”
These stylistic mistakes can cause confusion since a reader should be able to expect “the Court” to refer to the court receiving the document (or the U.S. Supreme Court, and if it’s not clear which, you should say more to make it clear). Equally important, we should all be following the same style. A foolish consistency may be the hobgoblin of little minds, but that description fits some of our readers.
Like “Court,” “Judge” and “Justice” should be capitalized only when they are part of the judge’s name or when referring to a Justice of the U.S. Supreme Court. Thus, you would say “Justice Lucas and the other justices.” But there is no circumstance in which you would say “the Judge.”
Unfortunately, the Bluebook is not consistent about this rule, carving out an exception for courts and judges. According to the Bluebook’s general rule, nouns referring to people or groups should be capitalized when they refer to specific persons or groups:
Commissioner Johnson
the Commissioner
the Board of Immigration Appeals
the Board
but
a commissioner
various committees
Associated Press style applies the Bluebook rule for courts and judges to all persons and groups: Capitalize the full name or title only.
the Federal Bureau of Investigation
the Secretary of Defense
Secretary Cheney
but
the bureau
the secretary
I think AP style makes more sense, partly because it is consistent, but Bluebook is Bluebook. What do you think?
2. Says the Bluebook, “Capitalize party designations such as “Plaintiff,” “Defendant,” “Appellant,” “Appellee,” and so forth when referring to parties in the matter that is the subject of the court document or memorandum.”
In other words, capitalize the parties in your case. (As long as I’m being snide about the Bluebook, which, by the way, gets capitalized as the Bible does, note that the sentence above redundantly begins a list with “such as” and ends it with “and so forth.”)
Unfortunately, the Bluebook, which is fond of rules for their own sake, does not give the simple explanation for this one. Party designations are the equivalent of names. You call someone “Plaintiff” just as you might call your mother “Mother.” Thus you are calling the plaintiff in your case “Plaintiff” as if it were his or her name. But when you are talking about the plaintiff in another case, you should not call him or her “Plaintiff,” any more than you would call my mother “Mother.”
Note that when the party designation is not capitalized, it needs an article (“the,” “a,” or “an”) before it. When it is capitalized, it is a name and does not take an article; you would not say, “The Mother put me through law school by working at three jobs.”
In Freeman, the plaintiff filed an action in strict liability.
NOT In Freeman, the Plaintiff filed an action in strict liability.
NOT In Freeman, plaintiff filed an action in strict liability.
These rules for capitalizing party designations apply in letters as well as court documents. When referring to the plaintiff in the case your letter is about, capitalize Plaintiff.
You Can Call Me Al
“Hereinafter”—there’s a word for you. Actually, there are three words for you: here, in and after. This one word made of three words means three other words: from now on. A classic example of legalese, “hereinafter” is a word you should avoid if you don’t want to sound so much like a lawyer. So should you avoid the other “here, there and where” words (therein, whereby, hereto, thereafter, etc.). The exceptions are “therefore” and the noun “hereafter”—as in, “Plaintiff will get his reward in the hereafter.”
The Bluebook apparently does not care if you sound like a lawyer, so it says on page 41 you should use “hereinafter” whenever you tell a reader how you are going to shorten the title of some authority you are citing. Fortunately, the Bluebook never says you have to do the same every time you shorten any name. Unfortunately, it never says how you should shorten the name of a party. I take that as permission from Bluebook to eschew “hereinafter” when announcing how we will refer to a case or party from now on. A lot of people say such things as:
Plaintiff Martin, Smith, Austin & Wong [hereinafter “Martin”] ...
Plaintiff Martin, Smith, Austin & Wong [hereinafter “Plaintiff”] ...
The three alternatives for identifying a shortened second reference are formed by eliminating various aspects of the “hereinafter” form. The first is just to get rid of “hereinafter”:
Plaintiff Martin, Smith, Austin & Wong [“Martin”] ...
The next is to get rid of the quotation marks:
Plaintiff Martin, Smith, Austin & Wong [Martin] ...
And the last, simplest, and therefore best, alternative is to get rid of the whole shebang and just start using the shortened name the next time it comes up. As long as you are confident your reader will not be confused, you don’t have to announce how you will refer to a party from now on.
Thus, if you are talking about husband and wife Peter Jones and Joan Jones, it clearly will not work just to start to refer to one or both of them as “Jones.” But the reader will know whom you mean if you say “Peter.” So just say “Peter” and don’t worry about explaining it. If you want to call Peter “Jones” from now on, however, you need to tell the reader you are doing that:
The defendants are Peter Jones (Jones), Joan Jones (Joan), and Michael Jones (Michael).
Note that I used parentheses instead of brackets. Did it confuse you? Many of you want to put quotation marks around the words in parentheses or brackets. While not incorrect, it is clumsier than the parentheses alone.
The only clear rules here, since the Bluebook obviously approves of using brackets, quotation marks and “hereinafter,” are:
1) Be consistent. If you use brackets and quotation marks once, you need to use them every time.
2) Don’t confuse your reader. Say whatever will be most easily understood.
Stop, Pay Toll
When a cause of action accrues, the statute of limitations begins to run or starts running. Something may come up to toll the statute, so it stops running for a while. When the tolling ends, the statute starts running again, until it expires or has run.
“Toll” means “suspend.” Do not use “toll” to indicate when the statute starts to run.
Small Points
Here are some little odds and ends that people have asked me about recently.
1. The past tense of plead is pleaded or pled, not plead.
2. Forward means “send on,” not just “send.” You can only forward something that someone else has sent to you first. There is nothing wrong with the word “send.”
When I have finished the declaration, I will send [not forward] it to you for your signature.
When I receive the answer to the cross-complaint, I will read it and forward [or send] it to you.
Note: Because forward means “send on,” you should not say, “I will forward it on to you.”
3. Once means “as soon as” or “immediately after,” not just “after.” So don’t say “Once A happened, we did B,” unless we actually did it immediately after A happened.
Similarly, “We will get together and discuss this once I have had a chance to go through the file” suggests the meeting will take place as soon as you are done going through the file, not just that you’ll go through the file and then call to set up a meeting.
By the way, there is nothing wrong with the word “after”; indeed, it is preferable to the two-word preposition “subsequent to.”
4. The verb following a “neither ... nor ...” compound subject should agree with the subject closer to it. What does that mean? Well, here’s the problem: When one of the components of the compound subject is singular and one is plural, should the verb be singular or plural?
Neither Congress nor the courts {has or have?} dealt with the issue.
The arbitrary rule is the verb must agree with the closer subject, which is “the courts.”
Neither Congress nor the courts have dealt with the issue.
But here’s the weird thing: If you reverse the two subjects, you have to change the verb.
Neither the courts nor Congress has dealt with the issue.
If the subject is just “neither,” the verb is singular.
Consumer groups have asked both Congress and the courts to fashion a remedy. Neither has dealt with the issue.
Roes By Any Other Name
Q: Why do we say “Roes 1 through 4”? Since we mean “Roe 1 through Roe 4,” shouldn’t we say “Roe 1 through 4”?
A: We are speaking of more than one Roe, right? We are speaking of four Roes. Which four? One through Four. In examining why someone asked me this question, I realized that “roe” is a plural noun—when it means “fish eggs.” But when used to indicate a fictional name, it is no more plural than “row.” You wouldn’t say, “Pick two selections from Row 1 through 4.” You’d say , “Pick two selections from Rows 1 through 4.” Similarly, we say “Roes 1 through 4.”
By the way, whenever you can, use Roe for a fictional name instead of Doe, simply to avoid confusing the plural (Does) with the third person singular of the verb to do (does). When the fictional name is starting a sentence, the capital D in Does doesn’t help. Does it?
Shortening the name of a case to just one party’s name
Looking at the Bluebook, we find a rare instance in which the Joint Chiefs of Law Review Staffs simply and sanely advise us to do whatever will make our meaning most clear. At least that’s how I interpret the Bluebook’s rule on page 70: “A case that has been cited in full in the same general discussion may be referred to (in text or footnotes) by one of the parties’ names without further citation.”
Accordingly, you may refer to Martin v Smith as either Martin or Smith—as long as the reader will know what you mean and will be able to find a citation without looking too far. (Even if some citation is necessary, you do not need to repeat the full case name, but can say “Martin, 32 Cal. 3d at 222.”) But which party’s name should you use? The one that will best identify the case for the reader. The Bluebook advises against using the name of a government or other common litigant because you might end up with cases with the same name.
Stay on The Case
What is the best way to refer to the case you are working on? “The instant case” and “the case at bar” seem to be archaic legalisms, but “this case” and “here” sound informal and may be ambiguous.
“The instant case” and “the case at bar” are archaic legalisms, and you should avoid them. What does “the instant case” mean, anyway—that if you just add water, it will turn into a case? And is “the case at bar” to be distinguished from the case behind the bar, presumably the good whiskey?
(There is a certain consistency here: If the case behind the bar is the good stuff, then the case at bar is the stuff they add water to.)
Having disposed of those demons, we can examine the problems with “this case” and “here.”
Although you must carefully consider the time and place for colloquialisms or jargon, informality is something else. There is nothing stylistically wrong with supposedly informal terms. Plain English is desirable.
The ambiguity problem, however, is more real. The problem arises when you have just discussed a case that establishes or applies a rule and you want to apply the rule to your case. For example:
In EEOC v Fremont, the defendant was a private college owned and operated by the Assembly of God Church. The Ninth Circuit said the school was exempt from Title VII as a religious institution.
If you start your next sentence “Here, ... “ or “In this case, ... “ the reader doesn’t know if you mean the case you are working on or EEOC v Fremont.
The first step to solving this problem is to be aware of it. When you use “here” or “in this case,” check to see if it might confuse your reader. If it won’t, go ahead and use it—plain English is desirable. If it might confuse, do something to eliminate the confusion:
• If you’re writing an in-house memo, you can say “in our case,” or “in [client’s name]’s case.” If you’re writing for a court, you also may be able to use the client’s name (or the other party’s).
• Make the transition clear:
Unlike [or like] the school in Fremont, the bookstore in this case ...
or
Applying the court’s reasoning in Fremont to the facts here, ...
• Use a word less archaic than “instant.” “In the present case,” for example.