By Anna Swift • July 05, 2017•Writers in Residence
One of the first decisions I made as a practicing attorney following my judicial clerkship concerned how to refer in my legal writing to the defendant I was representing. As a judicial clerk, the decision had been easy: I was to continue the method established in previous judicial opinions of referring to the defendant in the case for which an opinion was being drafted by party name (i.e., "the Defendant") after her or his full name was given. In contrast, as a practicing attorney no longer bound to any one way, the decision on how to refer to my client suddenly became my own, and I had to consider the pros and cons of different possible approaches to the matter.
In my last column installment, I discussed the principle of consistency and specifically mentioned that parties should be referred to consistently throughout a piece of legal writing. In this installment, I'll wrap up my discussion on the principle by focusing somewhat more on the concept of parties. Specifically, I'll discuss those major approaches that can be taken when referring to parties and indicate when those approaches are most suitable.
For example, as experienced by me as a judicial clerk, one simple-enough approach is to refer to parties by party name (i.e., "the Defendant," "the Plaintiff," or "the State") after they've already been introduced by their first and last names; anyone who isn't an actual party to the case could be identified by his or her relationship to the parties (i.e., "the victim," "the Defendant's mother," or "the State's primary witness"). The advantage to this approach is clear: Cases revolve around the parties involved, and using party names carries more meaning to the reader. After all, the use of party names allows the reader to skip the mental step of having to remind herself or himself of the legal significance of a character name. The use of party names can also save space when those individuals otherwise have very long last names. The downside to this approach, however, is that sometimes non-party characters don't have identifiable relationships to the parties involved, and so the non-party characters will need to be referenced in a different manner. Nonetheless, this party name approach works seemingly well in judicial opinions because judges are expected to treat the parties in a case fairly--and what better way to show neutrality than to refer to the major parties involved by party name?
Another approach to take when referring to parties is to refer to each of them by a courtesy title like Mr. or Ms. and a last name after they've already been introduced by their first and last names. This approach is attractive because it allows legal writers to be uniformly consistent when more than one character is involved and when some of those characters don't, for example, have identifiable relationships to the parties. After all, each character will at least have a last name that can be referenced throughout the piece of legal writing. Another plus to this surname approach is that it fits into the general expectation that legal writing is to be formal. Indeed, nothing seems more formal to me than the use of a courtesy title like Ms. Finally, when defendants are involved, the use of a last name and an accompanying courtesy title tends to be more humanizing than the use of the party designation (at least that is what I was taught during my time in law school). Therefore, this approach should seriously be considered by lawyers when they advocate for defendants in written form.
Lastly, a third approach to the matter at hand (and my personal favorite one) is to refer to parties descriptively after they've already been introduced by their first and last names. What's an example of this approach? Let's say that you're representing the plaintiff in a civil lawsuit and that the plaintiff is a lender whose loan was defaulted upon. This leaves the defendant in the case as the borrower. Although referring to the parties by party name would be perfectly suitable, I submit that it'd be even more compelling to refer to each character according to his or her individual role in the case (i.e., "the lender" and "the borrower"). Referring to the parties as "the lender" and "the borrower" instantly establishes and reminds the reader of what type of conflict brought about the case in the first place. Having said this, coming up with such descriptive terms can be difficult (and perhaps even impossible) when it comes to characters who play minor roles in a case, so this approach may work best when not too many characters are involved and when those characters have clearly defined roles in the case.
In this column installment, I've finished discussing the principle of consistency by identifying the major ways in which parties may be referenced in a piece of legal writing. In my next installment, I'll turn the discussion to another principle of writing. Return next month to read about the worthwhile concept of creativity.