Use real names (not procedural labels) for parties.

This week we discuss another tool for helping your reader follow your legal argument:  using real names instead of procedural labels to identify the parties.  For example:

  • This lawsuit involves two former corporate executives—Jack and Jill Smith—who used their positions to enrich themselves at the expense of their employer, Hill Company.  The Smiths’s scheme was not particularly complicated:  they wrongfully took confidential information that they had access to as corporate executives, and used it to further their private interests and the interests of their new employer, Up the Hill, Inc.—who was Hill Company’s competitor.  In the process, they tortiously harmed Hill Company.

Compare that paragraph with this one:

  • This lawsuit involves two former corporate executives—defendants Jack and Jill Smith—who used their positions to enrich themselves at the expense of their employer, plaintiff Hill Company.  Defendants’ scheme was not particularly complicated:  they wrongfully took confidential information that they had access to as corporate executives, and used it to further their private interests and the interests of their new employer, Up the Hill, Inc.—who was plaintiff’s competitor.  In the process, they tortiously harmed plaintiff.

In the first example, the reader is introduced to the characters by names, not labels.  This makes the arguments in the pages that follow more clear because, as the brief develops, the judge doesn’t need to keep track of generic plaintiffs and defendants—who are indistinguishable from the “plaintiffs” and “defendants” in the multitude of other briefs before her.  This principle has been adopted by Rule 28(d) of the Federal Rules of Appellate Procedure:

References to Parties.  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.”

Also, don’t try to personalize your client and dehumanize your opponent by using the real name for your client and the procedural label for your opponent.  Instead, use real names for both parties.  (Of course, if a court rule requires the use of procedural labels, follow that rule!)

That is all for now …

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