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Legal Writing Notebook: There are no rules in Plaintiff v. the plaintiff.

Byline: Karin Ciano

Hear ye, hear ye. The Court of Grammar is now in session, the Honorable Legal Writing Notebook presiding. The matter on the calendar today is the case of The Only Way to Write Is to Use an Article Before A Title v. Articles Before Titles Are Silly and Pretentious. Before the court are cross-motions for a ruling the proper usage: "the plaintiff," "plaintiff," or "Plaintiff." Counsel, please proceed.

The plaintiff: May it please the court, the rule of grammar is clear. Whenever a writer wants to restrict the meaning of a noun, including a title such as "plaintiff," the proper way to do so is to use an article. Articles have been part of the English language since Beowulf, and their use is straightforward. If referring a generic example among many of the same, use the indefinite article "a" or "an" depending on whether the next word begins with a consonant sound ("a briefcase") or a vowel sound ("an umbrella.") If referring to a particular, unique individual, use the definite article "the." Here, where there is only one plaintiff, "the plaintiff" is correct.

Plaintiff: Or you can capitalize, as you would for a proper name.

The plaintiff: Maybe, but the definite article "the" is clearer than capitalizing.

Plaintiff: Not really.

The plaintiff: Yes really. Articles are familiar parts of speech that smooth the reader's path. Using "the plaintiff" avoids too many Initial Caps, Which Are Distracting.

THE COURT: Hold it counsel. The court will hear the capitalization motion after everyone has been heard on whether to use an article before the word "plaintiff." Does plaintiff have anything to say?

"Yes, Your Honor," says plaintiff. "Articles, whether definite or indefinite, are pretentious and outdated. The court's expert witness, Professor Bryan Garner, has observed that '[i]t's widely thought to be useful and normal to omit a, an, the before party designations to create leaner, more readable sentences.' Using the plaintiff over and over makes a sentence flabby and ungainly. Plus the extra words proliferate like dandelions."

The plaintiff: Your Honor, without "the," plaintiff could be a plaintiff in any case. The ambiguity is not worth the risk. It also risks miscuing the reader, for example in this sentence proposed by Professor Garner: 'the motion fails to identify which plaintiff Defendant contends violated the ordinance.' See where it says "plaintiff Defendant"? Ick. Tell me that's not awkward.

"It's not awkward," says plaintiff. "The meaning is clear in context. Plain 'plaintiff' is shorter, simpler, and more egalitarian. This is America. We don't need articles and we don't need Initial Caps."

The plaintiff: But the example you cited has Initial Caps!

THE COURT: Simmer down, counsel. All right, now I'll hear the capitalization motion.

Plaintiff: Your Honor, Plaintiff should be capitalized for clarity and brevity. In contracts, capitalizing defined terms is a well-accepted method of ensuring that a particular word has a particular meaning. Professor Garner has observed that "[l]awyers have essentially co-opted party designations as faux proper names." Here, dropping an initial capital into Plaintiff clarifies it's this Plaintiff in this case, without a surfeit of articles in every sentence. Professor Garner has endorsed such a result.

"Not so fast," says plaintiff. "Professor Garner's quote goes on to say that '[t]here's a respectable dissentient view that this convention should be changed."

The plaintiff: "Dissentient"? And you're calling me pretentious?

"Look it up," says plaintiff.

The plaintiff: Your Honor, I vigorously oppose to the motion to capitalize. "This brief doesn't sound enough like a contract," said no one ever. And it's Initial Caps, not articles, that are distracting when they proliferate.

THE COURT: Thank you counsel. Swear the witness.

BRYAN GARNER [sworn]: Thank you Your Honor.

THE COURT: Professor Garner, you've heard the arguments on all sides. Do you have anything to add?

BRYAN GARNER: Ideally, you'd populate your sentences with real namesnot 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). But there isn't one right answerjust some broad guidelines based on standard practice: Use the party's name 99 percent of the time. Omit the article before a party designation unless it creates an awkward sentence or a miscue. And nevereveruse all-caps.

THE COURT: Thank you Professor. I must confess that the inconsistent uses of "plaintiff," "the plaintiff," and "Plaintiff" have made this column difficult to follow, and I thank counsel (and my readers) for their attempts to keep things straight. Based on the pleadings and proceedings herein, and the arguments of counsel, the court makes the following ruling:

Avoid "plaintiff" and "defendant" when you can, instead preferring names or descriptive phrases (the employer, the homeowner, the city, the bank, the insurance company);

When you can't, try this:

For a party in your case, initial caps (Plaintiff)

For a party in a legal precedent, no caps (plaintiff);

You may omit "the" before plaintiff or Plaintiff if the sentence is clear in context and there are no miscues;

Whatever you choose, stick with it and be consistent throughout the piece of writing; and

Remember this is a preference, not a rule.[1] If you are working with someone whose preference is different, you can be courteous and save time by editing their work only for accuracy and consistency, not to change their preference to your own.

All rise!

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This proceeding is completely made up, and Bryan Garner did not actually testify. His quotes come from Bryan Garner, LawProse Lesson #133: Should you write "Plaintiff," "the Plaintiff," or "the plaintiff"? (2013)

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[1] Just for fun, I downloaded a free trial of WordRake and ran this column through the editing program to see if the bots had a preference in the case of "the plaintiff" v. "plaintiff" v. "Plaintiff." They do not.

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Publication:Minnesota Lawyer
Date:Dec 3, 2018
Words:975
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