Legal Writing Notebook: It’s Time To Break Up With Initial Caps

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By Karin Ciano
Dolan Media Newswires

Dear Initial Caps:

We’ve Traveled a Long Way Together. The Moment I Saw You, I Couldn’t Take My Eyes Off You, and I Still Respect The Way You Get My Attention on a Crowded Page. But Lately I’ve Been Asking Myself if This Has Gone Too Far—If Our Relationship Is Becoming Unhealthy. I Rely On You Far Too Much, and Find Myself Capitalizing Words for No Reason. This Needs to End, and So I Must Say Goodbye. It’s Not You, It’s Me.

Can you relate? I count myself among the lawyers who have capitalized common nouns not wisely but too well, and therefore also among those who must be eternally vigilant lest initial caps overtake a page like dandelions in a spring lawn.

Initial caps are helpful, of course: they are the time-honored way to show a reader that This Is Important. Bryan Garner writes, “[t]here are really just three rules: capitalize the first word of a sentence, the pronoun I, and proper names. What could be easier?”

But lawyers generally agree initial caps are appropriate for those times when you need to avoid ambiguity or show respect, as in proper names (Barack Obama), honorifics (President), and terms of art (about which more later). The question is where to stop … and the answer for most of us is, who knows?

Perhaps it’s the tension between the noble impulse to be respectful and accurate, and the somewhat lesser impulse to get the darn thing written without taking forever to resolve obscure questions of orthography. I begin with good intentions, but after sprinkling a few Initial Caps into the text, my heart starts to bleed for all those sad little lowercase words. In a spirit of empowerment, I start capitalizing here and there, just to show respect. I think, what’s the harm? And then — dandelions.

Enter the style manuals and usage guides, offering variations on the theme of “capitalize this, not that.” Garner’s “Modern American Usage,” devotes two pages to the topic, including nine conventions intended to assist writers in their judgment calls.

Lenne Espenscheid, “The Grammar and Writing Handbook For Lawyers,” spends more than six pages on the topic, while acknowledging that the rules are “sometimes arbitrary and constantly changing so when in doubt, consult a current desk dictionary to ensure accuracy.”

The Bluebook has developed a whole rule just for capitalization (Rule 8). “(a) Headings and titles. Capitalize words in a heading or title, including the initial word and any word that immediately follows a colon. Do not capitalize articles, conjunctions, or prepositions when they are four or fewer letters, unless they begin the heading or title, or immediately follow a colon. (b) Internet main page titles and URLS. Capitalize URLS and words in an Internet main page title in accordance with the actual capitalization of the source. (c) Text. Except for headings, titles, and Internet main page titles and URLs, capitalize according to this rule. When this rule does not address a particular question of capitalization, refer to a style manual such as the Chicago Manual of Style or the Government Printing Office Style Manual. Practitioners should also refer to Bluepages B7.3 for further advice on capitalization. Additional words that should be capitalized in legal writing include: [a couple of pages of rules and exceptions].

Which brings us back to that somewhat lesser impulse… how to figure this out so we can finish our writing and get on with our lives? For those of us who live at the corner of Cautious Drive and Respectful Road, here are a few tips to add to Garner’s three rules.

Respect the Court

Every court gets introduced in initial caps, as with a proper name (e.g., the United States Court of Appeals for the Eighth Circuit). But when referring to it the second time, should we use “Court,” or “court”? Let’s go with the Bluebook here, which recommends “court” for all courts except (1) the United States Supreme Court, and (2) the Court you’re in front of right this minute.

That means if I’m writing a brief to the Minnesota Court of Appeals, I will refer to an opinion of the Minnesota Supreme Court thus: “as the court held in Text v. Footnotes….” Okay, I’ll admit, I need to take a deep breath and it still gives me the shivers. But it’s correct — at least until the court publishes a rule requiring otherwise.

Shouldn’t every Court get a capital? They’re all important, of course. But often, you’ll be referring to many Courts in a single piece of writing. Capitalizing the word Court every time you use it is respectful, but confusing to the reader — because the reader expects the capital letter indicates a particular court, the equivalent of a proper name or a term of art.

Capitalize terms of art only if they’d otherwise be ambiguous or confusing.

And speaking of which, let’s think about terms of art for a minute. In a contract, a term of art has a definition; it means one thing, and (we hope) one thing only. Documents designed to withstand a close read and an authoritative interpretation (that is, statutes, regulations and contracts) must avoid ambiguity, and initial caps are a useful tool for distinguishing between terms of art and ordinary common nouns. Second Financing Agreement means a particular document, and once it’s defined as “Agreement,” the initial capital makes clear you don’t mean just any old agreement between the parties.

As so often happens, litigators see this and think, “Cool!!! That would look great in my brief!” So we write, “Defendant has not complied with Plaintiff’s Third Request for Production of Documents.” If it’s the only request in dispute, folks, we don’t need the title. Talk like a normal person and stick with the common nouns (“Defendant has not produced the documents plaintiff requested.”) And by the way, litigators: plaintiff and defendant are common nouns, not terms of art.

Your brief, memo, or letter is intended to communicate and to persuade. If you’re not including a glossary or definitions page (and for your reader’s sake, I really hope you’re not) then you’re probably not dealing with terms of art, hence no need to capitalize.

Embrace lowercase

Just for fun, try writing the body of your next brief, memo, or letter in all lowercase (except for Garner’s three rules). Pretend it’s a novel. Don’t make capitalization decisions on the fly, when your resolve is weak and your attention wanders. Save them for the end, as part of the editing process, when you can make a decision that will be consistent throughout the document. It feels strange, I know, to leave those little words all alone in a big document without initial caps to protect them, but you know what? They can handle it. So can you. And I promise you’ll have a much healthier relationship with Initial Caps in the future.

Bonus track

ALL CAPS are ALWAYS hard to read and give the reader the impression that you’re SHOUTING. Avoid them, unless of course you’re commenting on a blog post.

Karin Ciano is owner of Karin Ciano Law PLLC and director of Twin Cities Custom Counsel PLLC.