Please Avoid Defined Terms and Acronyms
Please Avoid Defined Terms and Acronyms
(Hereinafter, "PADTA")
This article was originally published in the Cleveland Metropolitan Bar Journal in October 2021 and is reproduced here with the permission of the Cleveland Metropolitan Bar Association. The full issue of the journal as well as previous issues can be found here.
Like Pentagon staffers, lawyers are famous—or, more aptly, infamous—for acronyms, defined terms, and jargon. "Defendant Jane Smith ('Defendant');' a typical sentence in a brief might read, "was arrested by agents from the Federal Bureau of Investigation ('FBI') for violations of the Computer Fraud and Abuse Act ('CFAA'):' One sentence, but three defined terms readers must carry in their head for the rest of the brief (and that isn't even touching on the use of passive voice). There is a better way.
Parties
Let’s begin with the most important actors in any case: the parties. Attorneys often like to refer to the client or the opposing party or both by their role in the litigation: Defendant, Plaintiff, Appellee, Appellant, Petitioner, Respondent. And—having lived the case from start to finish—that is easy for the brief writer do and understand.
Not so for the reader. Every time a judge or law clerk encounters one of these words she must (even if only for a second) stop and ask: "Who is the Defendant in this case again?"
Much better to use names. So in the example above, "Defendant" becomes "Smith." Which is not to say that you should never refer to a party’s role after the first paragraph. As the district court judge I clerked for taught me, you should include it with the name every so often (e.g., "Defendant Smith"), just as a reminder. But not every time and certainly not alone. (A side note: Don't use names for your client but a party role for your opponent. Using your opponent's name is a basic sign of respect. Trying to depersonalize them with a title is petty and no judge has ever been persuaded by it.)
You might also use party roles where you must refer to a group of parties, such as several defendants, and no other descriptor will do. That, though should be a last resort. If you can group the parties in other ways—e.g, as banks, grocers, retailers—you should.
Lastly, before we move on: There is no need for a parenthetical definition when you use party names as I suggest, unless there is some potential for confusion. If there is only one "Smith" involved in the case, you can drop the first name from the second mention onward, no parentheses necessary. Your reader will get it. Trust them a bit.
Organizations
What about organizations? Generally, you should follow a similar rule: adopt an easy-to-remember shorthand. Preferably one that doesn't require the reader to create a key.
Which means you should eschew acronyms wherever possible. Refer to First National Bank as "First National" or "The Bank,” not as "FNB." While it is true that the acronym is shorter, that is its only virtue. The other options help the reader by eliminating the need to flip back to the lop of the brief to remember what anacronym means. Your brief shouldn't need a decoder ring.
Of course, every general rule has its exceptions. Some acronyms are so well-known that you should not only use them, but you also don't have to define them. FBI, CIA, NSA: Everyone knows what those acronyms stand for. In fact, a brief that defines them risks sounding pedantic—as if you are suggesting the reader might not know what "CIA” means.
These acronyms are the exception that proves the rule.
Statutes
And that leaves statutes. You can probably guess what I have to say.
If you can avoid an acronym, do it. Where there is only one statute involved, referring to it as "the Act" is preferable (though, in this case, you might use a parenthetical definition). "Section XYZ" is another option.
But I must also admit that this is an area where acronyms may be unavoidable. If so, use as few of them as possible. And try to keep them simple.
In the end, that is what all this advice boils down to: clarity and simplicity. Natural language, names, and phrases help the reader stay oriented. They keep the reader engaged in the story your brief is trying to tell. That is why your favorite fiction author uses the main character's name instead of referring to her as "protagonist" throughout the book. Defined terms and acronyms—by making the reader stop to remember what you are talking about (however briefly)—break that flow.
As for jargon, well, that is a problem for another column.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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