Above the Law

Preferably none of the above. Ideally, you’d populate your sentences with real names — not party designations. Your legal writing will become clearer, and readers will more easily keep track of who’s who (assuming you’re a competent expositor).

In appellate practice, this common-sense recommendation is prescribed by Rule 28(f) of the Federal Rules of Appellate Procedure: “In briefs and at oral argument, counsel should minimize use of the terms ‘appellant’ and ‘appellee.’ To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as ‘the employee,’ ‘the injured person,’ ‘the taxpayer,’ ‘the ship,’ ‘the stevedore.’”

But there are rare occasions when you should use a procedural label: when a single name is inaccurate because the case involves multiple parties, or when an opponent is extremely sympathetic and you don’t want to repeatedly highlight that fact. When you do use a label — as a last resort — use labels such as plaintiff, defendant, appellant, appellee, government, agency, department. Here are some suggestions:

• If you’re talking about a party in the present case, capitalize the designation {The company’s policy required Defendant to give two written notices}. Lawyers have essentially co-opted party designations as faux proper names. There’s a respectable dissentient view that this convention should be changed, but it’s firmly established. In any event, never use all-caps for party designations.

• When you’re discussing a legal precedent, use the and don’t capitalize plaintiff, defendant, etc. {The court denied the plaintiff’s motion}.

• It’s widely thought to be useful and normal to omit a, an, the before party designations to create leaner, more readable sentences. But omitting articles can cause problems {the motion fails to identify which plaintiff Defendant contends violated the ordinance}. Adding the before Defendant eliminates the miscue {the motion fails to identify which plaintiff the Defendant contends violated the ordinance}.

So there isn’t one right answer — just some broad guidelines based on standard practice: Use the party’s name 99% of the time. Omit the article before a party designation unless it creates an awkward sentence or a miscue. And never — never — use all-caps.

Sources:
Garner’s Dictionary of Legal Usage 79, 681 (3d ed. 2011).
The Winning Brief 181-85 (2d ed. 2004; 3d ed. forthcoming).
The Redbook § 2.16 (f), at 72 (3d ed. 2013).
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 120-22 (2008).

Thanks to Melinda W. Ebelhar, William Kenety, and Monte Vines for suggesting this topic.

Bryan A. Garner, President of LawProse Inc., is the most prolific CLE presenter in the U.S., having trained more than 150,000 lawyers and judges. His book — most prominently Black’s Law Dictionary and Garner’s Modern American Usage — have been cited as authority by every state and federal appellate court, including the highest. For more about him, go to www.lawprose.org. To follow him on Twitter: @bryanagarner.