Capitalization For Practitioners: Consistency Counts!

As a legal writing professor, one of my goals is to inspire my students to strive for excellence in their work. But this month, as I thought about what to say in this column, it was my students who inspired me. In late February, they turned in their rough drafts of their final assignment, and as I was reading, I noticed that their capitalization of certain words was wildly inconsistent, not only from draft to draft, but even from one page of a draft to the next.

In my students’ defense, we hadn’t spent much class time on capitalization, because in the big scheme of things, it is not as critical to good legal writing as content, structure, and readability. And at the draft stage, I wasn’t expecting perfection, and I wasn’t “grading” their capitalization. I’m sure that in the final briefs, which sit in a huge pile on my side table at home, most of the capitalization inconsistencies have been corrected.

However, “small things” like capitalization do affect our readers’ overall impression of our work. To a perfectionist (which many of our legal readers are), inconsistent capitalization may suggest at best that we are careless and at worst that we are not knowledgeable about capitalization rules. That, in turn, may suggest carelessness or lack of knowledge in our analysis, which affects the reader’s view of our credibility.

It seemed likely that if my students need some help with the rules of capitalization in legal documents, my colleagues who read this column might also need some help. Fortunately, my go-to source for legal writing style, the Aspen Handbook for Legal Writers, has a great summary of capitalization rules for some of the most common words used by legal writers.[i] I’ve “summarized the summary” below, drawing some examples from the Handbook and adding a few of my own.

Act

• Capitalize when referring to a specific act.
  • The Sarbanes-Oxley Act was passed in 2002. Since then, the Act has been amended numerous times.

  Code

  • Capitalize when referring to a specific code.
    • the Code of Federal Regulations
    • Do not capitalize when referring to codes generically.
      • The inspector cited the landlord for numerous code violations.

      Constitution

      • Capitalize when referring to the U.S. Constitution.
        • The Constitution has often been called a “living document.”
        • Capitalize when referring to parts of the U.S. Constitution in textual sentences.
          • The Fourth Amendment prohibits unreasonable searches and seizures.

          Court

          • Capitalize when referring to the United States Supreme Court or a state supreme court.
            • The Court’s decision in Brown v. Board of Education changed the civil rights landscape.
            • Capitalize when naming any court in full.
              • The Court of Appeals for the Seventh Circuit granted certiorari.
              • Capitalize when referring to the court to which you are submitting the document.
                • For the reasons stated in this brief, the Court should grant Defendant’s Motion for Summary Judgment.

                Federal

                • Capitalize when the word it modifies is capitalized.
                  • He was appointed to the Federal Commission on Safe Schools.
                  • Do not capitalize when it is used as a common adjective.
                    • The defendant was transported immediately to federal prison.
                    • Many ideas have been advanced as to how Congress can balance the federal budget.

                    Judge or Justice

                    • Capitalize when referring to a specific individual.
                      • Our guest speaker this evening is Judge Worthy, a highly-respected member of our local bar.
                      • Capitalize when referring to any Justice of the United States Supreme Court.
                        • The Justices issued a 5-4 decision.

                        Party designations (Plaintiff, Defendant, etc.)

                        • Capitalize when referring to the parties in the matter that is the subject of the document.
                          • The Court should allow Plaintiff to amend her Complaint in this matter.
                          • Do not capitalize when referring to parties generically.
                            • In Jones, the court held that the plaintiff had shown a likelihood of success of the merits.

                            State or Commonwealth

                            • Capitalize when it is part of the full name of a state.
                              • The State of Texas
                              • The Commonwealth of Virginia
                              • Capitalize when it is used as an adjective modifying a proper noun.
                                • The State Inspector General
                                • Capitalize when the state is a party to the matter before the court.
                                  • The State has not proved guilt beyond a reasonable doubt.

                                  Titles of court documents

                                  • Capitalize when referring to documents filed in the action before the court.
                                    • Plaintiff’s Complaint fails to state a claim for negligent infliction of emotional distress.
                                    • Do not capitalize when referring to documents in a generic manner.
                                      • A defendant has thirty days after service of the complaint to file a responsive pleading.

                                      Fortunately for my students, and for you as practitioners, these capitalization rules are fairly intuitive, and once you begin to focus on them in your drafting, you can learn them quickly. So it’s an easy way to improve the overall effectiveness of your writing.

                                      Laura Graham, Assistant Director of Legal Analysis, Writing & Research, is an associate professor of legal writing at Wake Forest University School of Law, where she has taught for 15 years. She welcomes email from readers at [email protected] .

                                      [i] Deborah E. Bouchoux, Aspen Handbook for Legal Writers: A Practical Reference 63-64 (2d ed. 2009).