This afternoon I was reading a federal court filing in a case involving a number of parties. The lawyers who drafted the filing engaged in a practice that ought to be, well, grounds for public humiliation. Let me give you an example of the practice:
Defendant Mickey Mouse (“Mouse”) moves for summary judgment against Dwarf Doc (“Doc”), Dwarf Happy (“Happy”), Dwarf Sneezy (“Sneezy”), Dwarf Sleepy (“Sleepy”), Dwarf Bashful (“Bashful”), Dwarf Grumpy (“Grumpy”), and Dwarf Dopey (“Dopey”).
Figured out what it is? It’s telling your reader that you don’t believe she can figure out on her own that when you later write Mouse you are referring to Mickey Mouse. Why on earth would anyone clutter up their prose with this? In my example, there are eight extra words that do nothing to help advance the client’s case. In an age when word counts are enforced by some courts, the practice just eats into the words you could use to persuade the court.
Judges, I should note, are not immune from criticism here. How many appellate opinions begin with something like this:
Robert Smith (“Husband” or “Robert”) filed for dissolution of marriage against Alice Smith (“Wife” or “Alice”). In this appeal, Husband argues that the trial court erred in awarding custody of the parties’ child to Wife.
If there are only two parties to the case, why is it necessary to put names or labels in quotation marks? The following is just as clear yet lacks the clutter that can make the sentence harder to read.
Robert Smith filed for dissolution of marriage against Alice Smith. In this appeal, Robert argues that the trial court erred in awarding custody of the parties’ child to Alice.
When asked about this practice, many lawyers and judges will say that they simply want the reader to be clear about whom the writer is referring. This makes sense if there are a number of similarly-named parties and keeping them straight is important. But when parties have distinctive names, this justification fails. In many instances, lawyers do this probably because as young lawyers they saw others do it, and thought that this is the way lawyers should write.
Mule muffins! Lawyers should write with clarity and in English. We don’t see novelists starting off their works like this:
Call me Ishmael (“Ishmael”)…
This practice needs to be eliminated promptly, lest we lawyers be accused of charging our clients by the number of words in the document.
Keep in mind that this practice can be abandoned in transactional work as well. A contract that might begin like this:
Robert Jones (“Buyer”) agrees to purchase from Alice Doe (“Seller”)…
can be just as clearly written like this:
Robert Jones agrees to purchase from Alice Doe a certain 2013 Audi RS5 automobile. Buyer agrees to pay the sum of $100,000 to Seller…
Any reader with a modicum of sense and intelligence will be able to figure out on his own that Robert is the buyer and Alice is the seller. There’s no need to insult the reader’s intelligence by inserting the labels in parentheses and quotation marks.
How long have you been insulting your readers? How much longer will you keep doing it?
Let’s work on eliminating this junk from our language, one lawyer at a time. I pledge to not allow this stuff in any document that bears my name or my authorship. Who will be second to make the pledge? Who will be next after that?