As we who teach legal analysis and writing teach students how to make the switch from objective to persuasive writing, we often talk about the little things that students can do to their briefs more persuasive.
One fairly obvious technique is for the writer to carefully choose how she wants to label the parties. Calling one party “the Defendant” rather than by his or her given name, for example, tends to de-personalize the defendant. Calling a business entity “the Company,” “the Firm,” or “the Corporation” may trigger for readers certain images or feelings, some of which may be negative. And that may be just what the writer wants if the writer represents a plaintiff alleging a wrong against an impersonal entity. Or, depending on context, maybe those designations are the quickest, easiest way to refer to one of the parties.
But who knew that “the Government” would be considered to a label to avoid—by the government itself? In Tennessee, the prosecution filed a motion to in limine to prevent defendant’s counsel from calling it “the Government.” Said the prosecutor, “The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice [defendant’s counsel], to refer to State’s attorneys as ‘the Government[.]’ . . . The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorney seem oppressive and to inflame the jury.”
Defendant’s counsel, Drew Justice, argued that, first, courts have often used “the government” to refer to the prosecution and “it . . . seems doubtful that all these judges are trying to demean prosecutors.” Nonetheless, he continued, such a ban violated the First Amendment. Finally, he argued that should the court ban the use of “the government,” then he had some requests of his own. “The Defendant,” he said, clearly has negative connotations. Thus, the defendant should be referred to by his full name, “preceded by the title ‘Mister.’ Alternatively, he may be called simply ‘the Citizen Accused.’ . . . ‘That innocent man’ would also be acceptable.”
As well, Justice continued, he would rather be called something other than “lawyer” or “defense counsel.” Justice recommended, among other choices, “Captain Justice.”
[T]he Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. While less impressive than “General,” still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.
To see the rest of “Captain Justice’s” motion and other suggestions for often-used labels in litigation, look here.
Perhaps not surprisingly, the judge in the case denied the motion.
Hat tip to 1L Daniel Lopez for sending me the link to the motion.