Italicize case names. Yes, italicize. Don’t underscore.

Old habits die hard. When I suggest that lawyers italicize case names, they often react in horror. But the modern preference is to italicize case names, rather than underscore, although either is correct. I know. You still don’t believe me. Since my word on this issue may not be enough to slant you (pun intended!) in the proper direction, here’s the reason why.

In the old days (before computers), lawyers underscored case names and introductory signals because typewriters and early word-processing programs could not italicize. So briefs that were professionally printed used italics, but briefs that were typed in-house had to make do with underscoring. Although most style manuals say that case names may be italicized or underscored, it makes sense to drop the obsolete convention of underscoring now that typewriters are being turned into jewelry.

All the authorities agree on this. The style guides still allow underscoring out of deference to anyone who may still be typing on an old typewriter. Contrary to popular perception, The Bluebook does not require underscoring. It gives the option of either underscoring or italicizing (see bluepages at front, B13 on typeface conventions), but it then confuses the issue by using underscoring throughout. (Did you expect anything but confusion from The Bluebook?)

The ultimate guru on all things related to the design of legal documents is Matthew Butterick. (His book, Typography for Lawyers, is groundbreaking. You should buy it.) He insists on italics for case names and also explains that the Bluebook does not require underscoring.  Bryan Garner also endorses italics. And Supreme Court briefs use italics. Here’s an example: Supreme Court Brief using italics.

Italics follow the design principle of keeping the fonts on a page as simple and consistent as possible. Italics are just easier on the eye.

So tilt away!

-Marie

P.S. My book contains many other fascinating tips like this.

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Farther or Further?

Farther refers to physical distance. (Remember that far suggests distance.)

• I will not carry this trial bag any farther!

Further refers to extent or an abstract idea.

• I won’t discuss it any further.

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Believe it or not, my book contains a riveting section on worrisome words like these. Be the first on your block to know.

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His or Her? Avoid the Gender Minefield by Using Plurals.

It’s hard isn’t it? As lawyers, we don’t always know the gender of the person we are writing about or we are writing about abstract issues that could apply to anyone—male or female. His sounds sexist and it is inaccurate where you don’t know the gender. Her sounds a little too political. His or Her is more accurate than either word alone, but it still sounds awkward and technical.

You can avoid the gender minefield by using plurals. Rewrite A student may leave his or her books on the tables as Students may leave their books on the tables.

And never use his/her. His/her fails the test for plain English because it is not even pronounceable.

In a longer work, such as a book, you can always turn to the marvelous Dr. Spock for an answer. In his classic book, Baby and Child Care, Dr. Spock talked about his abstract babies by alternating between his and her. It worked in 1946 and it is still a good technique. (Dr. Spock introduced each abstract baby, by saying “Let’s say it’s a boy (or a girl).”  That introduction that would not be necessary today, since we are accustomed to thinking across genders.)

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Subliminal Fear of Subparagraphs

Many of us harbor deep, subliminal fears about writing in subparagraphs. We wonder when we should use subparagraphs instead of prose or bullets. We forget how to punctuate the little buggers. And we sweat about grammar—particularly “parallel construction.” Let’s address each fear.

When to Use Subparagraphs

Subparagraphs are helpful if you have a list of similar items and some items are more important than others or the order of the items matters. If all the items are equally important, you can use Bullets instead.

How to Punctuate the Little Buggers

When using subparagraph format:

1. put a colon at the end of the phrase that introduces the subparagraphs;
2. put a number at the beginning of each subparagraph;
3. conclude each numbered subparagraph with a semicolon;
4. put and or or after the semicolon in the penultimate paragraph; and
5. end the last subparagraph with a period.

Since White Space is so delicious, your reader will love you for indenting your subparagraphs and putting a blank line between them.

If you are the squishy type, you can squeeze your subparagraphs into a traditional paragraph, with no indents and no line spaces. The squishy version is fine if you have only a few subparagraphs, but otherwise the white-space version goes down more easily. The same rules apply in the squishy format: (1) use a colon to introduce the subparagraphs; (2) put a number at the beginning of each subparagraph, but put the number in parentheses so it is easy to pick out of text; (3) put a semicolon at the end of each subparagraph; (4) put and or or at the end of the penultimate paragraph; and (5) finish with a period.

In other words, your subparagraphs should look like the subparagraphs I just wrote.

The All-Important And or Or

In legal writing, the words and or or are often the most important part of the subparagraph, so be sure that you use them correctly. And signifies that every element of the test matters. The five parts of misrepresentation, for example, always require the word and because a party must satisfy all five elements of the test. If the elements are optional or interchangeable use or.

Never ever use and/or. And/or is sloppy, ugly writing and it fails the test for plain English because it’s not a phrase we would use in conversation. (If you use and/or in conversation, your problems are far deeper than anything I can help you with here.)

Parallell Construction

Writers frequently make grammatical errors when writing subparagraphs because the front half of their sentence (the part before the colon) does not fit nicely with the back half (the part after the colon). To avoid these grammatical errors, “glue” the front and back of the sentence together. Mentally copy the words in each subparagraph to the end of the introductory phrase before the colon. Does the glued-together sentence make grammatical sense? If not, make whatever edits are necessary to make the two halves of the sentence fit together grammatically. Do this for each subparagraph.

Or simply begin each sentence the same way. Even the most subparagraph-challenged writers usually write the first subparagraph correctly. So use the same construction in later subparagraphs and your subparagraphs will glue together in the most grammatically wonderful way. For example, in my subparagraphs above, each subparagraph begins with a command: put, put, conclude, put, end.

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So fear not. Number away.

Let’s get serious about the serial comma.

A tiny comma can be worth a lot, so let’s talk seriously about the serial comma.

What is the serial comma?

The serial comma is the comma before “and” in a series of words. Here is a serial comma in living color:

I like apples, bananas, and cherries.

What’s the rule on serial commas?

In the civilian world, the use of the serial comma is a style choice. Generally, the civilian American approach does not use the serial comma, while the British approach uses it.

Although the grammar police differ on this issue, most require the serial comma for technical writing. The New York Times Manual of Style and Usage, which rules in the civilian world, does not require the serial comma. But The Chicago Manual of Style, the U.S. Government Printing Office and Bryan Garner all endorse the serial comma.

What’s a poor, confused lawyer to do?

You, my friend, are not in the civilian world. The serial comma is always more precise. Because precision is  essential in legal writing, you should always use the serial comma.  You’ll never offend anyone by using it and, in the legal world, a single comma can be worth a million dollars.  Click here to see a case where a comma was worth a million dollars (although the comma at issue was not of the serial variety): http://n.pr/milliondollarcomma

In transactional drafting, the serial comma is a must. Although the serial comma may not be as essential in our prose writing, it’s easier to be consistent and use the serial comma in all legal writing.

But, but, but (for those of you who dream of other things) …

But if you are writing the great American novel, be aware that the serial comma compromises the pacing of a sentence. Consider the famous line by Robert Frost:

The woods are lovely, dark and deep.

The stately and majestic pacing of this line is lost once we add a serial comma:

The woods are lovely, dark, and deep.

A widely circulated story says that Frost’s publisher made the unforgivable mistake of inserting that serial comma when the poem was first published—and that Frost made the publisher reprint the book to remove the offending comma.  So if you expect to be the next poet laureate of your nation or if you are writing the next great American poem or novel, the choice is yours.

The Bottom Line?

In legal writing, use the serial comma. The money you save may be your client’s!

The Final, Final Word

And if you don’t believe me, trust Stephen Colbert. Here is his ringing endorsement of the serial comma: http://bit.ly/AAlUEx  (at 4:25) What more do you need?

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Bullets: To Shoot or Not To Shoot?

(This is an update of an earlier post.)

When to Use Bullets?

Bullets are a modern, clean writing tool. They encourage spare writing because they enable you to leave out transitional words. Bullets work well in letters and memos, but they may be too informal for documents filed in court. You should almost never bullet case law or your paper may end up looking like a simple transcription of your research notes, rather than a thoughtful analysis of the cases.

Bullets or Numbers?

Bullets suggest that there is no hierarchy to the list, so only use bullets if all items in a list are of equal importance. If some items in the list are more important than others, use numbers instead and put the important items first.

What Kinds of Items Go in Bullets?

Don’t mix different types of items in one list. For example, don’t bullet a list about:

• Representation
• Reliance
• Intent
• Harm
• Giraffes.

Parallel Construction in Bullets?

Use parallel construction between bullets. If the first item is a word or fragment, later items must also be a word or fragment. If the first item is a full sentence or question, later items must also be sentences or questions. Here is an example of a list that has been corrected to use parallel construction:

The client asked us to consider several issues:

• Choice of law
• Personal jurisdiction
• What is the standard of review? Standard of review.
  

Rewriting the third bullet so that it is also a phrase solves the problem. 

Grammar in Bullets?

This is where most bullet writers shoot themselves in the foot. The front end of the sentence (the part before the colon) and the back end (the part after the bullet) must fit together. Mentally glue these two halves of the sentence together and read the glued version aloud to be sure it is grammatically correct. Here is an example of a list that has been corrected so that it has grammatical continuity:

The court will review:

• Choice-of-law issues
• Personal jurisdiction
• Did the trial court abuse its discretion? Abuse of Discretion.
  

(Putting each bullet in parallel construction will usually solve the problem.)

How to Punctuate and Style Bullets?

Bullets are a new style, so not everyone agrees on how to style them. Here is what I recommend:

• Put a colon at the end of the phrase of sentence that introduces the bullet.
• Capitalize the first word in the bullet.
• If the bullet is a word or a phrase, don’t put any punctuation at the end (except the last bullet will take a period).
• If the bullet is a sentence, put a period at the end.
• Do not put “and” at the end of the penultimate bullet.
• Always put a period at the end of the last bullet.

In other words, your bullets should look like my bullets in this post.

Overkill?

Keep bullets simple and clean. Bullets become visually complicated if they are spread over more than two facing pages.  Similarly, avoid bullets within bullets. The absence of any hierarchy will make the bullet points  hopelessly confusing.

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So–ready, shoot, aim!

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Setting Off Phrases Within a Sentence (Commas, Dashes, Parentheses)

There are three ways to set off phrases or any material that interrupts a sentence:

• Commas. Commas are neutral: We went to Tinker Theater, which is near the river, and saw King Lear.

• Dashes. The long dash—formally known as the em dash—adds emphasis and isolates material within a sentence: We went to Tinker Theater–one of the most beautiful theaters in the country–and saw King Lear. I love old theaters–especially at night.

• Parentheses. Parentheses take away emphasis: The stairwell at Tinker Theater was poorly lit. (Photo, Exhibit A.)

Although em dashes are standard modern usage, you don’t want to overdo them. Try not to use more than two sets of em dashes on any page. A third set suggests an unhealthy addiction. Bring the text right up to the dash, without putting a space before and after the dash. (The New York Times Manual of Style and Usage requires a space before and after the dash because the spaces are needed to format its print version in columns. Since lawyers don’t write in columns, we don’t need the spaces.)

(To make an em dash in Outlook Express and many other programs, make two hyphens and the program will automatically convert the hyphens to an em dash.  To make an em dash in Microsoft Word, use the shortcut alt0151 or click Insert/ click symbols on the far right/select more symbols, special characters and em dash. Simplify your life by assigning a shortcut key to the em dash and any other symbols that you use frequently.)

Save parentheses for references to outside material, such as Exhibits, or for very minor points. In our hierarchy of writing—where we lead from the top with our key points—parentheses suggest a lower layer of importance than ordinary text, so they often disrupt the flow of reading within a paragraph. Therefore, don’t use parentheses unless you really mean to downplay the material in the parentheses.

(The Usage and Punctuation Guide in the book explains how to use these marks in more detail and provides examples.)