Australia: The ABCs of legal writing, and the use of capitalisation

Immortalised in the George and Ira Gershwin song "Let's call the whole thing off" is the disparaging of different approaches to pronunciation; "You like potato and I like potahto, You like tomato and I like tomahto, Potato, potahto, tomato, tomahto!" According to Wikipedia, the Gershwin song intentionally uses a non-standard pronunciation as an exaggeration of the differences between the two characters. So, what of capitalisation in legal writing? "You say Defendant, I say defendant, plaintiff, Plaintiff, court, Court!"? Seemingly, and not unlike Gershwin, many people tend to use capital letters overenthusiastically to highlight words that they think are "important" or "deserving". This is often a mistake, although, based on the number of rules and exceptions, the confusion is defensible, with legal convention confounding the problem.

While research with reference books and search engines is a useful strategy for the perfectionists among us, let's take a look at some examples frequently occurring in litigation, and the approach recommended across the literature.

Some of the frequently confused capitalisation culprits include:

Legal documents

The statement of claim is to be filed tomorrow.

or

The Statement of Claim is to be filed tomorrow.

The word court

The Court delivered its reasons today.

or

The court delivered its reasons today.

Parties to litigation

The Plaintiff is to file its evidence by 3 September 2017.

or

The plaintiff is to file its evidence by 3 September 2017.

Order and Motion

The Court's Order was for the Plaintiff to file a Motion to Dismiss.

or

The Court's order was for the Plaintiff to file a motion to dismiss.

One explanation to solve the capitalisation conundrum can be found in the requirement that capital letters should be used for proper nouns, being nouns that name specific places, people, things or ideas and in contrast to common nouns, which denote a class of objects or a concept as opposed to a specific one.

Based on this core principle, the words 'order', 'motion' and legal documents (e.g. 'statement of claim', 'defence') arguably ought to be capitalised when they describe a specific document; but lower cased when they are used to describe a category of actions or papers generically. For example:

The Statement of Claim filed in the Proceeding alleges that your client....

A statement of claim needs to be filed....

Similarly, when it comes to terms such as 'plaintiff', 'defendant', 'applicant', 'respondent', 'appellant', it could be argued that this basic tenet of capitalisation requires that the words should be capitalised when referring to the specific plaintiff or defendant and that lowercase should be used when the words are being used generically to describe the class of person.

Alas, at least according to US texts, the capitalisation of these words becomes even more complicated by legal convention, which dictates that when a plaintiff or defendant is being described in a legal precedent, the appropriate approach is to use lower case and that capitals should only be used in reference to the specific plaintiff or defendant in the matter you are litigating. There is no guidance on the capitalisation of these terms in Australian literature.

In relation to the word 'court', in the US, convention again dictates that capitals should be used when referring to the Supreme Court, and in relation to the highest tribunal in a particular jurisdiction as well as the court you are addressing. In other instances, lower case should be used. The position in Australian literature differs still; According to the Australian Legal Guide to Citation (AGLC), "'court' should be capitalised when used to refer to a specific court however 'a court' and 'the court' (absent reference to a specific court) should not be capitalised". The AGLC also confirms that generally words should only be capitalised when they appear at the beginning of a sentence, title or heading of are proper nouns.

Beyond this, the limit of the guidance which can be readily found on the topic of capitalisation in legal writing is contained in the Sydney Law Review Style Guide, which places the matter as simply as "when a word is being used adjectively rather than to describe a specific entity the lower case should be used".

Confused? Me too and it seems that this sentiment is shared more broadly, with two counsel (or Counsel?)!! I recently inquired of, each taking a different view on the issue. The modern trend, however, is towards cleaner simpler writing and less capitalisation, so, if uncertain, perhaps the safest bet is to err on the side of the lower case alternative.