Capitalization in Briefs to a Trial Court

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Category: Legal Writing
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chart_capitalRight now, our first-year students are finalizing their trial-level briefs in the LAWR 2 course.  We’ve been discussing when to capitalize certain words in a brief.  Here are the general rules according to the 18th edition of the Bluebook.  (Rule 8 and B10.6):

1.  When to capitalize references to a court:

  • Referring to the U.S. Supreme Court (by full name or “the Court”)
  • Referring to a court by its proper name (“the Wisconsin Supreme Court”)
  • Referring to the court reading your brief (“this Court should find”)
  • But NOT capitalized:  Referring to a precedent decision (“In 1977, the Shepard court held”)

2.  When to capitalize party designations:

  • Capitalize references to parties in the current action.
  • Example:  “Defendant Carlson failed to stop at the intersection and hit Plaintiff Jordan’s car.”
  • Note that when referring to a party without adding their last name, add the word “the.”  See Anne Enquist & Laurel Oates, Just Writing 265 (3d ed. 2009).
  • Example:  “Plaintiff Ludke alleges that the Defendant committed theft by contractor.”

3.  Capitalize the specific titles of court documents, but not generic references to court documents.

  • Example:  “In the Plaintiff’s Brief in Support of His Motion to Dismiss”
  • Example:  “The Court’s order provided that”

4.  When to capitalize references to a constitution:

  • Capitalize “Constitution” when referring to the U.S. Constitution or another constitution by its full name.
  • In a generic reference, the Wisconsin Constitution becomes “the constitution,” but the United States Constitution is still capitalized as “the Constitution.”

5.  When to capitalize references to a state:

  • Capitalize “state” when referring to the state as a party to litigation (“the State brought this action”)
  • Capitalize the full title of a state or the word it modifies is capitalized (“the State of Kansas”)

6.  When to capitalize certain nouns:

  • Capitalize nouns referring to “specific persons, officials, groups, government offices, or government bodies” (the FDA or Congress)
  • Capitalize acts when referring to a specific act by name (the National Labor Relations Act)
  • Capitalize specific codes (the 1959 Code)
  • Capitalize circuits when using a number (the Seventh Circuit)
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15 Responses to “Capitalization in Briefs to a Trial Court”

  1. Ron English Says:

    At least for the first few years, one should also capitalize any and everything your boss wants capitalized.

    I have learned this to include the full name of the party when referenced initially in a court document, e.g. the Plaintiff MICHAEL JONES. The name of your law firm.

    The word WHEREFORE near the end of a complaint.

    And many more idiosyncratic capitalization requirements bosses love to emphasize with red pen.

    Good luck and learn quick 1Ls!

  2. Tom Kamenick Says:

    Here’s a question for you, professor.

    When interning or clerking for a judge (and without specific direction one way or the other), should a person capitalize “court” in an objective memo?

    E.g., “I recommend that this court/Court reverse the circuit court.”

    On the one hand, it’s fairly analogous to a brief or motion to the court from a party. On the other hand, the clerk or intern has no need to stroke the judge’s ego and is not writing a formal, public record, communication to the court.

  3. Tom,

    That’s a great question. I don’t think one right answer exists, so the best advice would be to find out what the custom is in the court where you are clerking or interning, and then to follow that custom. Enjoy your clerkship!

    This comment reminds me to note that the rules stated above also apply when submitting a brief to an appellate court.

    Ron also brings up a good point that a lot of firms have their own in-house style rules, which a person should follow.

  4. Bankruptcy Judge Susan Kelley Says:

    This is really helpful, especially the rule about capitalizing “state” which comes up a lot, even here in federal court. I would recommend that if you are not sure about capitalizing or if the Bluebook is not clear, at least be consistent. Probably you are better off erring on the side of capitalizing, and once you do, remember to capitalize throughout your memo or brief.

  5. Susan Cohen Says:

    Question on capitalization. How do I treat the following?

    motion to dismiss or Motion to Dismiss
    Protective Order or protective order

    Thank you,

    Susan

  6. Melissa Greipp Says:

    Susan,

    The answer depends on whether the documents are being used in the same case as the current document you’re filing with the court.

    Bluebook B10.6.3 requires you to capitalize the title of a document when “(i) the document has been filed in the matter that is the subject of your document; and (ii) the reference is to the document’s actual title or a shortened form thereof.” Generic references to a document are not capitalized.

    The rule also recommends not abbreviating titles in textual sentences.

    It looks like both document titles in your question are the actual titles, so if they are part of the pending action, you should capitalize them.

  7. Bankruptcy Judge Susan Kelley Says:

    I agree with this. I may have seen “In the Trustee’s motion to dismiss, she argued that the deadline had expired.” But I’m sure I’ve never seen, “The Plaintiff is seeking a protective order due to the burdensome nature of the discovery requested.” I think Order is always capitalized, and if it’s a Protective Order, then Protective is capitalized too. And in my first example, there would certainly be nothing wrong with capitalizing Motion to Dismiss.

  8. Blake Smith Says:

    I was wondering whether the name of the action in a count should be capitalized. Would I write, “The Court should dismiss Plaintiff’s Count I Breach of Contract Claim” or should it be “Count I breach of contract claim”.

    Thanks!

  9. Melissa Greipp Says:

    Blake,

    Great question! The Bluebook does not provide a specific answer here. The general rule on capitalizing titles in Bluebook Rule
    8(a) indicates that you would capitalize the title. (“Count I Breach of Contract Claim”) You could also look to the analogous rule on capitalizing court documents in B7.3.3 (the Bluepages). In my experience, capitalizing the title of an action is the general custom as well.

  10. “•Note that when referring to a party without adding their last name, add the word ‘the.’ See Anne Enquist & Laurel Oates, Just Writing 265 (3d ed. 2009).
    •Example: ‘Plaintiff Ludke alleges that the Defendant committed theft by contractor.'”

    Are you sure about this? This contradicts what the bluebook’s examples would indicate, and it also contradicts everything I have ever seen submitted. The capitalized versions of plaintiff and defendant are used in place of the name, so I see no reason why you would add “the” when you fail to include the last name. Adding “the” only really makes sense when you are using the lowercase versions.

  11. @Lee – I agree. I tell students that they are simply substituting the party’s given name for the party’s legal category. You wouldn’t say “Plaintiff Ludke alleges that the Smith committed theft by contractor.” Further, Bluebook Rule B7.3.2 shows an example that omits the “the.”

  12. Melissa Greipp Says:

    Lee,

    Thanks for your good question. This question–whether to include the definite article (the) before the words Plaintiff or Defendant–is something I’ve been thinking about since I first started reading briefs while in law school. My preference is to add the definite article.

    You’re right that the Bluebook may support an argument for omitting the definite article. B7.3.2–Party Designations–gives the following example: “Plaintiff denies Defendant’s baseless allegations of misconduct.” That example certainly provides support for the conclusion that you don’t need to add a definite article before a reference to a party in a case.

    However, the Bluebook also provides the examples of “the Court” and “the Agency”, which both similarly replace proper nouns with common, capitalized, nouns. Rule 8. In those examples, as well as others in Rule 8, the definite article continues to be used.

    My preference for using the definite article is based more on the grammar rule that you should use a definite article when using a specific noun. http://owl.english.purdue.edu/owl/resource/540/01/.

    Before responding to your question, I looked at a sample of federal and state opinions. I saw a lot of variety in how the courts used, or didn’t use, the definite article with party designations. In some cases, the author of the opinion used both forms (Petitioner and the Petitioner, for instance). In those opinions, it seemed the author may have added or omitted the definite article based on how the reference sounded in the sentence.

    I think the best answer here is to say use your best judgment. The custom in your area of practice may be to omit the definite article. In that case, it may be more comfortable for you and the reader of your briefs to continue to omit the definite article. Or, maybe you want to create the sense that your writing is more formal, in which case adding the definite article would help to create that sense of formality.

  13. Anne Enquist Says:

    It is true that it is common to see those terms capitalized and used without articles in many examples of legal writing, and the Bluebook example does seem to endorse that approach. My co-author Laurel Oates and I have seen the article included and deleted in the writing of many attorneys and judges. Nevertheless, the general rules concerning articles in English are clear about when they should be used with nouns in situations like these, and we believe that is why so many readers find it jarring when they see plaintiff or defendant used without an article.

    The comparable situations may help to illustrate the rule. For example, in a sentence in which the noun is an appositive, the article is used.

    Example: David Brown, the landlord, unlocked the apartment. OR The landlord unlocked the apartment. We don’t say “Landlord unlocked the apartment.” If it had been David Brown, the defendant, unlocked the apartment, why would we say “Defendant unlocked the apartment”?

    In an example in which a proper noun is used as part of a title or full name, the same analysis applies.
    Example: President Barack Obama traveled to California. OR The President traveled to California. We don’t say “President traveled to California.” Why would we say “Plaintiff traveled to California”?

    The rule in Just Writing that applies is Rule 3 in Chapter 10 on page 263: Use the definite article “the” with count and non-count nouns when the specific identity of the noun is clear to the reader. I would not use reason 3 about superlative and ranking adjectives because we often have neither with the words plaintiff and defendant. Reason 1 is more likely the better explanation: Readers know the specific identity of a noun after it has already been used once in a given context.

  14. Brytta Fitzgibbons Says:

    In what cases would “Federal Court” be capitalized?

  15. Melissa Greipp Says:

    Brytta,

    Federal court is a generic term, so it is not capitalized. You would, however, capitalize certain references to proper names like Seventh Circuit, such as in the following example: The Seventh Circuit is a federal court.

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