RAWDATA’S RANDOM LEGAL WRITING CONVENTIONS,
FROM THE TRIVIAL TO THE SUBLIME
"Plaintiff" and "The Plaintiff"
When
referring to a party in a precedent, that party should be referred to with
the definite article; in contrast, the writer of a legal document, when
referring to a party in the case which is the subject of that document, should
(1) omit the definite article and (2) capitalize the initial letter of
the party's title. For example, in a brief submitted to a court by the
plaintiff's attorney, the writer's client should be referred as
"Plaintiff" and the adversary should be referred to as
"Defendant." In the same document, the writer should designate the
parties to the precedents she is writing about as, for example, "the
plaintiff" and "the defendants."
Tense
for facts in precedents (past). Tense for rules articulated in precedents
(present).
Refer
to parties in precedents not by their names but by their roles. The “plaintiff” and the “defendant”
is a start, but if you are writing about a landlord and tenant case, why not,
for example, the “plaintiff-landlord” and the “defendant-tenant”? If you are referring to a contract case,
why not refer to the parties as “buyer” and “seller”? The proper names of the parties are
meaningless to the reader of a memo or brief; in contrast, identifying them by
their roles in the lawsuit and the events underlying the lawsuit help the
reader understand the story you are trying to tell about the case.
Punctuation used in conjunction with quotations.
The
legal writer generally does not precede a quote with a comma. Rather,
the sentence should read grammatically with or without quotation marks around
the quotation. Typically, therefore, the writer should precede the quotation
with (1) "that" and no punctuation or (2) a colon. For example, one
would write: (1) "The court in Reste
Realty stated that ". . . ." or (2) "The court in Reste Realty stated: ". . . ."
The capitalization
of words within a quotation must also be identical to that it would be if the
sentence did not contain a quotation. Use brackets to change capitalized
letters to small letters and vice versa. For example:
You want to
include a quotation from the decision in Clark.
The sentence you want to quote is the following: "A hosptial
cannot escape liability for the negligence of doctors in its facilities
by..." You could do so in the following way:
The court in Clark stated that "[a] hospital cannot escape
liability for the negligence of doctors in its facilities by..."
Beware Absolutes
Rarely,
if ever, is something always the case. There are always exceptions (even
to the rule that there are always exceptions). Even if the reader understands
the utility of exaggeration as a part of speech, avoid it. If you don't know
whether something is "always true" or "the biggest" or
"the most" or the absolute degree of anything, do not write that it
is. It is your credibility on the line. This rule is a corollary of the rule
that one should always be so accurate one will drive one's non-lawyer friends
nuts with one's obsessiveness.
Beware Pronouns
There
is no faster way to irritate another lawyer (such as your boss or the judge
before whom you are appearing, not to mention your legal writing professor)
than to tell a story (orally or in writing) with continual reference to the
participants in it as she, he, him, her, it, etc. The listener/reader
continuously has to think, as he listens/reads, "Who is she referring to? Plaintiff? Defendant? Bouncer? Tortfeasor? . . ." Use people's names or roles when referring
to them. Err on the side of too much clarity.
And do not forget
that an institution (a business, a school, a hospital, etc.) is an it, not a they.
Use past tense in discussing precedents
Cases
used as precedents are over, done with, in the past. Refer to their facts and
to statements made in them in the past tense. For example:
In Clark, a doctor committed malpractice
.
In Clark, the court stated that "[a] hospital
cannot escape liability . . ." (not the court states. . . )
By the way, courts,
not cases, state or write the words in opinions. Thus, for example, "The
court in Clark stated that. . ." is preferable to "Clark stated
that. .."
Get names right
Maybe
this point is an obvious one. If you think so, you'd be surprised how many students
misspell their own client’s names in their memos and briefs.
What constitutes a supporting case?
A
case in which the court determined that the defendant was vicariously liable is
not good support for an argument that your client was not vicariously liable no
matter how much the court discusses all the possible situations in which a
defendant would not be liable. A case supports an argument if the result in
that case is the result being advocated in the argument.
Remember the way to structure a paragraph
The
first sentence of a paragraph should give the reader a clear understanding of
the conclusion of the entire paragraph. This is a topic sentence. The
paragraph should contain no sentences which do not fall within the
subject matter indicated by the topic sentence. I would rather see one-sentence
paragraphs than paragraphs discussing multiple subject
matters.
Underlining
Underline
(or italicize - they're equivalents) foreign words (including the period
in an abbreviation of a foreign word), case names, and the signals
used in citations. Do not underline the comma following a case name, the
"at" when referring to a page number, the page number, etc.