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Words To Live By:

From Justice Scalia's & Bryan Garner's Making Your Case:

If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, "(hereinafter 'the Secretary')." No one will think that your later references to "the Secretary" denote the Secretary of Defense, or perhaps your own secretary.

PatHMV (mail) (www):
Well, the "hereinafter" is a bit much, but is any harm done by simply putting "('the Secretary')" afterwards in all cases? It's not like it takes judges extra time to read that. I've read plenty of agreements where I was pretty sure I knew which document was being referred to as "the Agreement" or which Department was being referred to by its acronym, but for a variety of reasons it wasn't 100% certain, because the author of the Agreement didn't consistently use such parentheticals.

In any given document, it may be unnecessary (or, more likely, it may be unnecessary for one term but necessary for a number of others). Much better, and safer, to be clear, where the only cost is the addition of one extra word and set of parentheses. Otherwise, you've got to comb through the document and go "ok, do we ever refer to any other Secretary? How about any other Department? Any other Agreement? Any other Act?, etc., etc."

I'm afraid I view this piece of advice as a bit silly (though if writing a brief aimed particularly at Justice Scalia, I would certainly take the time to carefully go through it and remove any unnecessary such parentheticals.

I think the advice would be better spent telling everybody to drop the "hereinafter," which is indeed utterly unnecessary and adds lots of surplus verbiage to the document.
8.7.2009 6:18pm
Frecklerock:
Is there a blue-booking or other convention on these sorts of basic short forms that are so often abused by lawyers? I am aghast to see that virtually every brief written by white shoe law firms will spend characters in an introductory sentence to define, for example, Professor Eugene Volokh as hereinafter "Volokh" or "Eugene" or "Prof. Volokh", always as defined terms in quotations and parenthesis. By two pages in, we have Smith and Johnson joining up with Stevenson to do xyz to McHenry, and it's all very confusing with a million parenthesis. It strikes me that the wiser course would be to dump the parenthesis, mention Professor Eugene Volokh by his full name and title in the first sentence, and thereafter refer to him as "Prof. Volokh."
8.7.2009 6:23pm
Steven Lubet (mail):
At the first mention of the Secretary of Transportation it would not be obvious that no other secretary will be mentioned in the brief. Thus, the parenthetical (sans "hereinafter") actually provides a moderately useful piece of information. Subsequent references to "the Secretary" will be unambiguous.
8.7.2009 6:28pm
Helen:
And the individual who refers to "his own secretary" as a secretary is asking for a lot of trouble; it's perceived as an insult today. They are now termed "administrative associates/assistants", or "admins" for short.
8.7.2009 6:34pm
arbitraryaardvark (mail) (www):
Way back in legal writing class we were cautioned to try to avoid archaic terms that aren't legal terms of art, but tend to be used by lawyers, or worse, civilians trying to sound like lawyers, e.g "said widget", hereinafter, whereas, &c.
Sometimes these are the only words that will do, but usually there's a way to say it in plain English.
8.7.2009 6:38pm
Frecklerock:
Pat: Justice Scalia limits this rule, stating that it applies to a brief that "repeatedly refers to the Secretary of Transportation and mentions no other Secretary...." That being the case, there will be no confusion as to who the Secretary is, and hence no need for the added specificity.

"Combing" through a document for the word Secretary is not too time consuming with "control F." It's a tenth of an hour well spent to tighten up a Supreme Court brief.
8.7.2009 6:41pm
Specast:
The Garner/Scalia rule simply requires judgment. In situations where the reference cannot be ambiguous, don't add a parenthetical. The oh-well-it-can't-hurt attitude only adds clutter perpetuates the custom that parentheticals are always necessary.

Anyway, these pointless parentheticals just kill me, but some attorneys refuse to do away with them. I'm working on a case (let's call it Apple Corporation vs. Microsoft Corporation and Dell, Inc.)that's been pending for over six years before the same judge. Nevertheless, every senior attorney insists that every brief start off by parentheticalizing every party


Apple Corporation ("Apple") hereby opposes the motion filed by Microsoft Corporation ("Microsoft") and Dell, Inc. ("Dell") (collectively, "Defendants"). See Declaration of Clarence Darrow ("Darrow Declaration"), Ex. A.


We do this for replies as well. Sigh.
8.7.2009 7:03pm
Frecklerock:
Specast: Well said. I only have perhaps one addition to make to your example, eliminating the unnecessary half-parenthentical:


... opposes the motion filed by Microsoft Corporation ("Microsoft") and Dell, Inc. ("Dell" and collectively, "Defendants").
8.7.2009 7:13pm
PabloF:
Jeez, I read this thread and find myself getting all worked up about supra and infra.
8.7.2009 7:14pm
Steve:
This is a pet peeve of mine, even though Justice Scalia takes it even farther than I insist on. I'm sort of resigned to Apple Corporation being defined as ("Apple") at the start of every brief. But what I absolutely can't abide are the people who will start a letter like this: "On behalf of Professor Eugene Volokh ("Prof. Volokh"), I write..."

Then there's people who start briefs like this: "Defendants Microsoft Corporation and Dell, Inc. (hereinafter, "Defendants") hereby..." It may be necessary and even advisable to define a term like "the Individual Defendants" or "the Dell Defendants" or whatever. But you don't have to explain to the court that "Defendants" is a term that collectively refers to the parties who are defendants in the case!

Another issue to bear in mind is what kind of document you're writing. If it's a contract, better safe than sorry, and there's no harm if your opening sentence does nothing but define one abbreviation after another. But if it's a brief or some other document intended to persuade, the last thing you want is for your opening sentence to be a bunch of legal gobbledygook that only serves to distract the reader from the first line of your story. Many lawyers throw in all these parentheticals and unnecessarily defined terms as if there's no downside, but there absolutely is a downside in terms of readability.
8.7.2009 7:16pm
Steve:
opposes the motion filed by Microsoft Corporation ("Microsoft") and Dell, Inc. ("Dell" and collectively, "Defendants").

I actually find this kind of awkward, but more to the point, if they're the only two defendants you really don't have to explain that you will be collectively calling them "Defendants."
8.7.2009 7:17pm
Frecklerock:
Steve: Point well taken. I think you are correct on needlessly defining Defendant A and B as "hereinafter 'Defendants.'"

A measure of common sense is needed here to discriminate when it is actually clearer to throw off the shackles of the "defined term" and instead simply state in your first sentences that "A and B entered into a Loan Agreement dated August 7, 2009. The Loan Agreement provides that ...."
8.7.2009 7:36pm
Downfall:
I've lost track of the number of opinions I've read that have some variant of "State of New York ('New York') argues that..."
8.7.2009 7:50pm
Frecklerock:
The real debate here is the perpetual quest for lawyerly exactness / specificity ... and the resulting 100 page briefs and 1000 page bills (see, e.g., health care bills currently moving through congress), versus simpler, common sense approaches, which of course will not be as exhaustive. Both approaches have merits and potential shortcomings. We seem to have a perpetual love affair with the former.
8.7.2009 7:57pm
common sense (www):
As a professional brief reader, I question the need for any parentheticals. If your abbreviation is so confusing that it is not readily apparent, maybe you should choose a different abbreviation. I'm sure there are exceptions. And I cannot overstate how much readability makes a difference in a brief.
8.7.2009 8:06pm
Richard Johnston (mail):
For briefs, in cases where abbreviations are going to be used a lot I just add an "Abbreviations" section right after the table of authorities. That way you don't clutter up your text and the reader has a convenient place to look if any questions come up.
8.7.2009 8:38pm
guestagain (mail):
"Another issue to bear in mind is what kind of document you're writing. If it's a contract, better safe than sorry, and there's no harm if your opening sentence does nothing but define one abbreviation after another."

Precisley. You are writing it so even the dumbest judge can understand it without getting him/herself all confused.
That is altogether different than the brief.

Another pet pieve - and I am occasionally guilty - "Plaintiff-Counter Defendant" and "Defendant- Counter Plaintiff" or Appellant-Defendant" or "Appellee-Plaintiff"
Repeated use of those descriptive terms makes the brief read like an ancient pickwickian pleading and is really hard reading.
8.7.2009 8:43pm
Steve:
Another pet pieve - and I am occasionally guilty - "Plaintiff-Counter Defendant" and "Defendant- Counter Plaintiff" or Appellant-Defendant" or "Appellee-Plaintiff"

Some people use these terms as if it were illegal to just call the parties by their names. Remember, the goal is to communicate effectively!
8.7.2009 8:53pm
Houston Lawyer:
Just last week I received a written comment from an SEC reviewer stating that I had defined "Securities" but had not defined "Security", which term was used later on in my legal opinion.

So blindingly obvious is not always the standard we are held to.
8.7.2009 9:17pm
Mark N. (www):
What's odd is that some of Scalia's own opinions seem to do this, most commonly with "hereafter 'the Act'" when there's only one Act mentioned in the case.
8.7.2009 9:24pm
Laura(southernxyl) (mail) (www):

As a professional brief reader, I question the need for any parentheticals. If your abbreviation is so confusing that it is not readily apparent, maybe you should choose a different abbreviation.


I thought this too. Perhaps "Secretary of Transportation" should be abbreviated as "SoT". He or she might not appreciate that.
8.7.2009 9:43pm
Guestie:
How often do Garner or Scalia successfully persuaded anyone?
8.7.2009 11:34pm
Kevin Forrester (mail) (www):
Justice Scalia sits down with Peter Robinson of the Hoover Institution in 5 short video segments of "uncommon knowledge" linked: here.
8.8.2009 12:36am
Displaced Midwesterner:

Another pet pieve - and I am occasionally guilty - "Plaintiff-Counter Defendant" and "Defendant- Counter Plaintiff" or Appellant-Defendant" or "Appellee-Plaintiff"
Repeated use of those descriptive terms makes the brief read like an ancient pickwickian pleading and is really hard reading.



This is one where I think that context is particularly important. Conventional wisdom among legal writing gurus seems to be to prefer proper names over procedural postures. This makes sense when you have 2 or 3 relevant parties. But when you are dealing with some complex, sprawling litigation with lots of third-party litigants, I think using procedural postures can help (although hyphenated postures are unnecessary - there's not much ambiguity when you say "Defendant's counterclaim against Plaintiff" instead "Defendant-Counterclaimant's counterclaim against Plaintiff-Counterdefendant"). Remember, the judges and clerks are devoting much less time to your particular case then you are. It can make things much clearer when the procedural postures are used instead of making your reader try to recall whether East Widget is the third-party defendant and Widget Pros is an original defendant or its the other way around.
8.8.2009 1:10am
R Gould-Saltman (mail):
OK, as long as we're flogging pet peeves, from down here in the trial court trenches:

When attaching or referring to exhibits to affidavits
/declarations, as long as there's not going to be a material issue as to different versions of, or altered copies of, e.g., the "letter of January 1, 2009 from Fred to Bob",
is there any reason that
"(a true and correct copy of which is attached hereto as Exhibit A, and is incorporated herein by reference)"

is considered preferable to simply

"(Exhibit A)"?


R. Gould-Saltman
8.8.2009 3:17am
Federal Dog:
I have never had to tag a party in a brief. Even when there were two defendant brothers with the same last name, I simply used their first names when necessary to distinguish them.
8.8.2009 8:00am
FantasiaWHT:
I like it.

My first LW teachers were good enough to tell me that "hereinafter" doesn't ever have to be used in this situation. Two years later in adv. brief writing, my professor finally pointed Scalia's point out - you only have to give something a "nickname" if there's going to be any confusion.
8.8.2009 8:32am
Laura(southernxyl) (mail) (www):
R. Gould-Saltman, if you make the documents too readable, people like me who are not lawyers will begin to think we can understand a legal doc as well as you can. Or if readable docs are acceptable, that we can write one as well as you can.
8.8.2009 9:07am
drunkdriver:
I can't tell you how many briefs I have read where the first paragraph says basically nothing, thanks to stuffing like this. It is a tired device, as natural a part of the brief to many lawyers- and about as informative- as the case caption and the signature block at the end.

We would do well to remember that even the best judges have limited time to read our briefs, and distracting junk like this should be cut whenever humanly possible. Get to the point!
8.8.2009 12:21pm
New Pseudonym (mail):
At least it's better than in the second reference saying "Secretary (hereinbefore 'Secretary of Transportation')". I agree with those who say that the worse part of this is the herein . . . ,not the parenthetical.
8.8.2009 1:17pm
nomilk:
If it's a contract, better safe than sorry, and there's no harm if your opening sentence does nothing but define one abbreviation after another.


That's a silly exception. Good legal writing is good legal writing, whether in a brief or in an agreement.

And you obviously don't read a lot of contracts if you think that a huge block of text with endless contract parties and abbreviations causes no harm. If I can't quickly tell who the parties are something is wrong with the agreement. I always tabulate and enumerate the parties in the opening of an agreement and try to avoid excessive defined-term abbreviations.
8.8.2009 1:50pm
Duffy Pratt (mail):
I've read many contracts that used parentheses for abbreviations even when some of the abbreviated terms never appeared a second time in the contract.
8.8.2009 2:40pm
PatHMV (mail) (www):
nomilk... I agree with tabulating and enumerating the parties. But I find that defined-term abbreviations tend to make contracts much more reasonable. If you've got 3 or 4 references to, say, "any patents deriving from the Patents or the Patent Applications which take precedence based on the filing date of such Patents or Patent Applications," then it's a lot more comprehensible to define that once as the "Future Derived Patents," and use that in the rest of the document. It's easier to read and there's less risk that you'll make an error in one of the repeated phrases.
8.8.2009 4:19pm
stoptobebanningtheTCOsomuch:
Duff:

I'm not even a lawyer (hereinafter "IANAL"), but...

I think that can happen often in the drafting process...and also when one standard (or previous) contract is used as a template for another. Imagine if the second usage got editted out and then editted back in...we would then have to watch out for adding the nick description back in.

Note, IANAL, but this is NOT a theoretical issue. Look at the massive revisions that go on in the course of negotiating an Asset Purchase Agreement (and under time pressure). Ever sold a business?
8.9.2009 9:44am
David M. Nieporent (www):
In any given document, it may be unnecessary (or, more likely, it may be unnecessary for one term but necessary for a number of others). Much better, and safer, to be clear, where the only cost is the addition of one extra word and set of parentheses. Otherwise, you've got to comb through the document and go "ok, do we ever refer to any other Secretary? How about any other Department? Any other Agreement? Any other Act?, etc., etc."
Uh, Pat -- setting aside the fact that most word processing software created since about 1980 make it rather easy to "comb through a document," wouldn't you have to do that in any case?

I mean, if you do refer to some other Secretary in the document, then you wouldn't want to define "the Secretary" to refer to the Secretary of Transportation, as it would still be confusing.
8.9.2009 2:38pm
FDrinkwater (mail):
As I believe was quoted in The New Hacker's Dictionary:
- at the end of the long obligatory first page footnote about copyrights was the item "and UNIX, although not mentioned in this paper, is a trademark of AT&T."

It's important to make sure you don't forget to CYA.
8.9.2009 2:40pm
David M. Nieporent (www):
nomilk... I agree with tabulating and enumerating the parties. But I find that defined-term abbreviations tend to make contracts much more reasonable. If you've got 3 or 4 references to, say, "any patents deriving from the Patents or the Patent Applications which take precedence based on the filing date of such Patents or Patent Applications," then it's a lot more comprehensible to define that once as the "Future Derived Patents," and use that in the rest of the document. It's easier to read and there's less risk that you'll make an error in one of the repeated phrases.
FYI, Pat, if you're ever negotiating a contract with me, I'd prefer you create a Definitions section of the contract, and define Future Derived Patents in that section, rather than doing so in a parenthetical the first time the phrase is used.

If I'm reading Section XIV on page 18 of the contract, and I see Future Derived Patents, I don't want t comb through the document looking for the first time the phrase is used to see how it's defined.
8.9.2009 2:42pm
Justin Levine:
I can tell you from experience that the worst violators of this rule are so-called 'entertainment' attorneys who draft agreements for their clients. They are truly the worst legal writers that I have come across.
8.9.2009 4:19pm

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