University of Ottawa Faculty of Law (Civil Law Section)

From the SelectedWorks of Hon. Gerald Lebovits

June, 2009

Nuts 'n' Bolts: Legal-Writing Mechanics—Part I Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/158/ JUNE 2009 VOL. 81 | NO. 5 JournalNEW YORK STATE BAR ASSOCIATION

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Ethical Issues Are Only the Beginning Also in this Issue From the “Code” to the by Adam R. Bialek, Paris A. Gunther “Rules” and Scott M. Smedresman “Cohabitation” Clauses After Graev Avoiding IRS Tax Disputes 2008 Insurance Law – Part II THE LEGAL WRITER BY GERALD LEBOVITS

GERALD LEBOVITS is a judge at the New York City Civil Court, Housing Part, in Manhattan and an adjunct professor at St. John’s University School of Law. For their research help on Parts I and II of this column, he thanks Alexandra Standish, his court attorney, and St. John’s University law student Jamie Bunyan. Judge Lebovits’s e-mail address is [email protected]. Nuts ’n’ Bolts: Legal-Writing Mechanics — Part I

riting mechanics refers to unless all the pieces fit. Making your feet from the car.” Tanbook and Redbook writing details: numbers, nuts ’n’ bolts fit just right will assure an example: “The top law students earned Wnumerals, and figures; typo- accessible, comprehensible, and con- 2, 4, and 11 awards, respectively.” graphic symbols; abbreviations; italics sistent document. Don’t start a sentence with a fig- and underlining; and capitalizations. ure.11 Incorrect: “2009 marks the one- No one right way best tightens 1. Numbers, Numerals, and Figures year anniversary of his admission legal-writing nuts ’n’ bolts, but differ- A number is an abstract mathematical to the New York bar.” Correct: “Two ent authorities try. Most practitioners, concept. A numeral is a that thousand and nine marks the one- federal judges, law-journal editors, and expresses the abstract mathematical year anniversary of his admission to Moot Court boards use The Bluebook: A concept. Words denote numerals in the New York bar.” If you must use a Uniform System of Citation.1 New York ABCs. Example: “Three.” Figures denote number to start a sentence, spell it out state judges and court staff use the New numerals in 1, 2, 3s. Example: “123.” or rewrite the sentence. Example: “1920 York Law Reports Style Manual, com- Cardinal numbers express quantity or is an important date in the battle for monly called the Tanbook.2 Writers magnitude. Examples: “one,” “two,” women’s rights.” Becomes: “Nineteen- in the humanities and social sciences “three.” Ordinal numbers express rela- twenty is an important date in the often use the Chicago Manual of Style.3 tive positions. Examples: “first,” “sec- battle for women’s rights.” Or: “In Many lawyers rely on an authoritative ond,” “third.” 1920, after the Nineteenth Amendment style manual called The Redbook, by Conventions vary on whether was ratified, women were allowed to Bryan A. Garner, Black’s Law Dictionary’s to spell out numerals.6 Under the vote.” Editor in Chief.4 Some law-school Bluebook and ALWD, spell out zero legal-writing professors teach their to ninety-nine and use figures for 100 students the ALWD Citation Manual: A and above in textual material, foot- Whatever the Professional System of Citation.5 notes, and endnotes.7 Examples: “hun- preference, maintain Sometimes the rules in these sourc- dred,” “thousand,” “million.” Under consistency. es are consistent with one another. the Tanbook and the Redbook, spell Often they’re not. The Bluebook, for out numerals up to and including example, has different rules for dif- nine; use figures for numerals 10 and According to ALWD and the ferent documents: Memorandum and above.8 According to the Bluebook and Redbook, insert between the brief writing has one set of rules; jour- the Redbook, you may spell out round third and fourth digits, the sixth and nal writing, another. The Bluebook’s numbers larger than ninety-nine if you seventh digits, and so on.12 Examples: rules also differ between how sources do so consistently.9 “2,000,” “430,000.” Under the Bluebook, should appear in the text and how they The Legal Writer recommends fol- which differs in this regard from other should appear in footnotes or end- lowing the Tanbook and the Redbook. style guides, insert commas in figures notes. ALWD and the Tanbook make Spelling out numerals gives a docu- that contain only five or more digits.13 no such distinctions. ment a formal air, but figures are easier Correct: “32,457,” “3425.” Incorrect: Determining the source on which to read than letters. Follow the guide- “3,425.” you should rely depends on your audi- lines in your jurisdiction or citation Don’t insert commas in figures ence and document. If you have a guide. Whichever numbering method when the classification system doesn’t choice, choose a source that’ll create you select, always be consistent. use commas. Examples: docket num- a document that’s accessible, compre- The style of the larger numbers in a bers, citations, Internet databases, hensible, and consistent. No matter series controls the style of the smaller serial numbers, road numbers, room what you assemble — a bike, a book- numbers.10 Bluebook and ALWD example: numbers, social security numbers, tele- case, a brief — nothing will endure “The bullets ricocheted 12, 65, and 135 CONTINUED ON PAGE 52

64 | June 2009 | NYSBA Journal THE LEGAL WRITER CONTINUED FROM PAGE 64 phone numbers, highway numbers, The Bluebook and the Tanbook rec- billion Ponzi scheme has been all over street numbers, military time, and ommend using figures for calculations. the news.” years.14 Example: “306 + 821 = 1127.” Don’t use numerical abbreviations Use figures if the number includes Under ALWD and the Redbook, use like “K” (to represent “thousand”) or a decimal point. Example: “Pi equals figures in citations unless the number “M” (“million”) in legal writing. These approximately 3.14159.” Don’t use is part of a title; repeat titles as they’re colloquial abbreviations create ambi- commas after a decimal point. Incorrect: written in the original.19 Citation exam- guity. “1.23,456.” Correct: “1.23456.” ple: “Johnson sued his employer under A plural of a numeral is formed by When spelling out numbers, 42 U.S.C. § 1983.” But: “The parties’ adding an “s,” not an “s.”24 hyphenate two-word numbers below relationship was like the one in the Example: “Some attorneys educated in 100. Example: “Joe Smith charges five movie 10 Things I Hate About You.” the 1970s still use legalese.” Spell out hundred fifty-five dollars an hour.” Use Under the Tanbook and the Redbook, indefinite expressions unless doing “and” only when expressing cents.15 use figures for dollar amounts of any so will confuse. Example: “The court Incorrect: “To be exact, his hourly fee is size.20 Tanbook and Redbook examples: reporter is in her twenties.” When citing a range of pages, according to the Tanbook, give the Spelling out numerals gives a document pages at which the reference begins and ends, separated by an en a formal air, but figures are easier to (–) or (-).25 Example: “(People v read than letters. Wilson, 93 NY2d 222, 224-225 [1999]).” There’s no between the page number and the en dash or hyphen. four hundred and ninety-eight dollars “$1,” “$50,” “$120.” According to the Under the Bluebook and the Redbook, and seventy-five cents.” Correct: “To be Bluebook and ALWD, you may spell retain the last two figures when the exact, his hourly fee is four hundred out the phrase or use figures for dol- numeral has three or more figures, ninety-eight dollars and seventy-five lar amounts.21 Example: “The doctor but drop other repetitious digits.26 cents.” charged plaintiff $150 an hour for his Separate the page range with an en The Tanbook and ALWD recom- court appearance.” Or: “The doctor dash or hyphen. Thus, pages 2308- mend spelling out fractions less than charged plaintiff one hundred fifty 11 means pages 2308 to 2311. ALWD one.16 Examples: “three-fourths of the dollars an hour for his court appear- allows either method.27 estate,” “two-thirds share,” “one-eighth ance.” Under the Redbook, don’t elide fig- of the farm.” Under the Tanbook, use When referring to money, put a ures in a range of measurements or a figures for fractions greater than one.17 symbol before the figure or the corre- span of years.28 According to ALWD Example: “He used 1½ (: no space sponding word after the amount, but and the Redbook, don’t elide a range of between 1 and ½) reams of paper to don’t do both. Correct: “$5.” Correct: sections or paragraphs.29 Correct: “15 print his brief.” Under ALWD, frac- “five dollars.” Incorrect: “$5 dollars.” U.S.C. §§ 2301-2310 (2000).” Incorrect: tions greater than one may be written According to the Redbook, always “15 U.S.C. §§ 2301-10 (2000).” The using words or figures.18 Don’t insert use figures for chapters (Chapter 11); Bluebook permits eliding sections or a space between the whole number dates (November 14, 2005); sections paragraphs unless doing so might and the fraction in a figure. Example: (§ 1983); statutes (title 9 of the U.S. confuse.30 The Tanbook recommends “Petitioner seeks to evict respondent Code); time (9:30 a.m.); volumes retaining all figures in a range of mea- from her 3½-bedroom apartment.” Or: (Volume 33); numbers in name of roads surements and sections or paragraphs. “Petitioner seeks to evict respondent (111 Centre Street); military divisions Use figures to write times and dates.31 from her three and one-half bedroom (M1A1 Platoon); measurement units Examples: “7:00 p.m.,” “11:00 a.m.” But: apartment.” (98° F.); and decimals (0.2009).22 “four o’clock.” Don’t spell out “th,” To ensure accuracy and prevent Spell out centuries (“twenty-first “nd,” or “rd” when you write the date forgeries, spell out figures when draft- century”) and, in text, as opposed in figures, but pronounce them when ing a bank check, contract, or will. to citations, the amendments to the you speak. Incorrect: “Today is August Example: “70,000 (seventy thousand) U.S. Constitution (“Twenty-first 30th.” Correct: “Today is August 30.” acres.” Otherwise, don’t use both fig- Amendment”).23 Don’t repeat in later references a year ures and numerals. When precision isn’t required, round that’s already been established. Correct: Write out constitutional, statutory, off numbers greater than a million and “On April 20, 2004, the child was kid- and contractual provisions as they spell out “million,” “billion,” and “tril- napped. On April 23, the police found appear in the original. lion.” Example: “The Defendant’s $50 the child and arrested the kidnapper.”

52 | June 2009 | NYSBA Journal Spell out seasons. Examples: “spring,” x 112'” Correct: “112 feet by 112 feet.” symbols at the beginning of a sen- “summer,” “fall,” “winter.” Incorrect: “The decedent buried the tence: Spell them out. Use the para- A controversy exists about whether weapon 9" from the deck.” Correct: graph (¶) and section symbols (§) to put a after a date within “The decedent buried the weapon nine in legal citations. Always use a non- a sentence. The comma is optional, inches from the deck.” The Redbook breaking space, or hardspace, between but the Legal Writer recommends put- recommends using foot-and-inch sym- the symbol and the figure that fol- ting a comma after the year. Example: bols.35 To express feet-and-inch sym- lows. Examples: “Look at ¶ 13 of the “On October 6, 2008, the attorneys bols, don’t use smart quotes (curly brief.” “Plaintiff sued under 42 U.S.C. appeared in court for trial.” Or: “The quotation marks). Use the straight § 1983.” Under the Bluebook, spell out attorneys appeared in court on October typewriter-style, also known as the words “section” and “paragraph” 6, 2008, for trial.” Or (to eliminate the or double-prime, quotation marks. in the text unless you’re referring to controversy): “The attorneys appeared The Redbook suggests using the a provision of the U.S. Code or a for trial on October 6, 2008.” symbol in text. But spell out federal regulation.40 Bluebook example: Write “January 30, 1999,” not the the word if it’s at the beginning of a “The attorney breached section four of international or military “30 January sentence (unless you’re referring to the state’s ethics rules.” But: “Plaintiff 1999.” the boy band “98°”).36 Correct: “Don’t sued under § 1983 of the U.S. Code.” Don’t separate the month from the go outside. It’s 98°.” Or: “Ninety- In Bluebook citations, use the section year with a comma or an “of.” Incorrect: eight degrees is the outside tempera- or paragraph symbol.41 Under ALWD, “January, 1999” and “January of 1999.” ture.” Under the Tanbook, write out you may use the symbols or spell out Correct: “January 1999.” the word “degrees” instead of using the words when referring to a spe- Use in names the degree symbol.37 Example: “98 cific section or paragraph in the text.42 to differentiate successors. Example: degrees.” Example: “In the brief, ¶ 2 contradicts “Judge John Doe III presided over the Under ALWD and the Redbook, ¶ 5.” Or: “In the brief, paragraph two murder trial.” use figures with symbols, such as cent, contradicts paragraph five.” Under the In non-legal contexts, spell out ordi- degree, foot, inch, and percent; don’t Tanbook, use symbols with figures and nal numerals. Examples: “first,” “sec- insert a space between the symbol spell out words with words.43 ond,” “third,” “fourth”; in legal cita- and the figure.38 Example: “It felt like Double the section or paragraph tions, use 1st, 2d, 3d, 4th, 5th, 43d. 104° in the courtroom.” ALWD recom- symbols when referring to consecu- Example: “The law school is located on mends either spelling out the phrase or tive sections or paragraphs.44 Examples: 42nd Street.” Citation example: United using figures and symbols.39 Whatever “Look at ¶¶ 13, 14, 15 of the affida- States v. Doe, 12 F.3d 456 (2d Cir. 2009). the preference, maintain consistency. vit.” “Plaintiff refers to §§ 1961-1965 Example: “The victim crawled twenty- of the U.S. Code.” Exception: When 2. Typographic Symbols two feet to reach the telephone.” Or: citing multiple subsections within the Symbols like $ (dollars), ¢ (cents), % “The victim crawled 22' to reach the same section or multiple subpara- (percentage), and ° (degrees) are more telephone.” graphs within the same paragraph, use easily comprehended than the spelled- Use the symbol “@” (at) only in only one section or paragraph symbol. out terms they represent. Symbols are e-mail addresses. The sym- Bluebook, ALWD, and Redbook example: helpful shortcuts, but don’t use a sym- bol “&” (and) is appropriate only in “section 33, subsections 1, 2, and 7.” bol to begin a sentence. business names that include it in their Becomes: “§ 33(1), (2), (7).” There’s no Use typographic symbols with fig- formal name. Use the ampersand sym- hardspace between the section number ures.32 Don’t insert a space between the bol in a party’s abbreviated name. and the subsection. Tanbook example: symbol and the number. Incorrect: “The Example: “Smith & Smith LLP.” “section 33 subdivisions 1, 2, and 7.” plaintiff seeks $ 25,000 in compensa- Here are some symbols’ meanings: Becomes: “(§ 33 [1], [2], [7]).” Note the tory damages.” Correct: “The plaintiff ® means that a trademark or service Tanbook hardspace between the sec- seeks $25,000 in compensatory dam- mark is registered, ™ refers to an tion number and the subdivision. ages.” Spell out dollar, cent, and per- unregistered trademark, SM refers to Don’t put a space before or after an cent symbols when the numerals are an unregistered service mark, and © em dash (—). Example: “The attorney— spelled out.33 Example: “The Defendant shows copyright. Don’t use a trade- meticulous and unrelenting—handled stole sixty-two percent of the plaintiff’s mark or in text; the four-week trial.” Exceptions: Put fortune.” Repeat the symbol to express doing so is distracting and unneces- a space before and after the em dash a range. Example: “The law firm charg- sary. Capitalize the name of the trade- when your publisher does so, when es between $300 and $500 an hour.” marked word. the text is fully justified, or when the The Tanbook recommends using Legal writing uses two common text appears distorted: “The attorney “feet” and “inches,” not symbols ' symbols: ¶ represents a paragraph; § (foot) and " (inch).34 Incorrect: “112' represents a section. Don’t use these CONTINUED ON PAGE 54

NYSBA Journal | June 2009 | 53 THE LEGAL WRITER nym, set off in parentheses. Example: 14. Bluebook R. 6.2(a)(vii), at 74; ALWD R. 4.2(h) CONTINUED FROM PAGE 53 “Manhattan Country Club (MCC) is (3), at 31; Redbook R. 5.11(b), at 93. suing defendant for unpaid member- 15. Redbook R. 5.16, at 96. — meticulous and unrelenting — han- ship dues. MCC claims $10,467 in 16. Tanbook R. 10.2(a)(3), at 72; ALWD R. 4.2(g), dled the four-week trial.”45 arrears.” at 31. Consult Tanbook Appendixes 1 17. Tanbook R. 10.2(a)(3), at 72. 3. Abbreviations (case name), 2 (case law reporters), and 18. ALWD R. 4.2(g), at 31. Abbreviations are shortened forms of 3 (appellate history and other abbre- 19. ALWD R. 4.1, at 29; Redbook R 5.2(c)–(d), at 89–90. a word. Avoid abbreviations in legal viations in citations) for abbreviations. 20. Tanbook R. 10.2(a)(2), at 72; Redbook R. 5.6, writing, except for citations or com- Consult Bluebook rule 6.1 and Tables at 91. monly used abbreviations. Don’t start T.5–T.16 for lists of abbreviations for 21. Bluebook R. 6.2(d), at 74; ALWD R. 4.2(f), a sentence with an abbreviation; write arbitral reporters (T.5), case names at 30. out the entire word. If a sentence ends (T.6), court names (T.7), explanatory 22. Redbook R. 5.6, at 91. with an abbreviation that has a period, phrases (T.8), legislative documents 23. Tanbook R. 10.3(f), at 74; Redbook R. 5.6(c), don’t add another period to finish the (T.9), geographical terms (T.10), judges at 91. sentence. Incorrect: “The trial will begin and officials (T.11), months (T.12), peri- 24. Tanbook R. 10.3(e), at 74; Redbook R. 5.13, at 9:30 a.m..” odicals (T.13), publishing terms (T.14), at 94. Abbreviate time by a.m. and p.m. services (T.15), and subdivisions (T.16). 25. Tanbook R. 2.2(a)(4), at 11. Abbreviate eras by B.C. for Before Consult ALWD Appendices 3 (general 26. This method is known as elision. Bluebook R. Christ, A.D. for Anno Domini (in the abbreviations), 4 (court abbreviations), 3.2(a), at 59; Redbook R. 5.12, at 94, and R. 5.14, at 95. year of the Lord), and C.E. for the and 5 (abbreviations for legal periodi- 27. ALWD R. 5.3(b), at 35. Common Era. Always use these abbre- cals). 28. Redbook R. 5.14(b), (c), at 95. viations with figures. Write either In the next column, the Legal Writer 29. ALWD R. 6.6(c), at 40; Redbook R. 5.14(c), “11:00 a.m.” or “eleven o’clock” but not will discuss italicizing, underlining, at 95. ■ both. Don’t abbreviate days or months and capitalizing. 30. Bluebook R. 3.3(b), at 62. in the text. Correct: “Wednesday.” 31. ALWD R. 4.2(e), at 30; Tanbook R. 10.3, Incorrect: “Wed.” In citations, abbrevi- 1. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 18th ed. at 74–75; Redbook R. 5.15, at 95–96. ate days and months according to the 2005). 32. Bluebook R. 6.2(d), at 74; Redbook R. 5.6, relevant authority. 2. New York Law Reports Style Manual at 91. Abbreviate a person’s title. Exam- (Tanbook) (2007), available at http://www. 33. Bluebook R. 6.2(d), at 74; Redbook R. 6.4, ples: “Mr.,” “Ms.,” “Dr.,” and “Esq.” nycourts.gov/reporter/New_Styman.htm (html at 100. version) and http:// www.nycourts.gov/reporter/ 34. Tanbook R. 10.2(b)(2), at 74. These abbreviations are used in con- NYStyleMan2007.pdf (pdf version) (last visited junction with the person’s name and May 7, 2009). 35. Redbook R. 6.4(d), at 101. appear before or after the name. Be for- 3. Chicago Manual of Style (15th ed. 2003). 36. Redbook R. 6.4(a)–(b), at 100. mal in legal writing. Correct: “Professor 4. Bryan A. Garner et al., The Redbook: A Manual 37. Tanbook R. 10.2(b)(2), at 74. Smith.” Not: “Prof. Smith.” Abbreviate on Legal Style (2d ed. 2006). 38. ALWD R. 4.2(f), at 30; Redbook R. 5.6, at 91. academic degrees. Example: “J.D.,” 5. Darby Dickerson & Association of Legal Writing 39. ALWD R. 4.2(f), at 30. Directors, ALWD Citation Manual: A Professional “M.D.,” “B.A.” Don’t combine abbre- System of Citation (3d ed. 2006). 40. Bluebook R. 6.6(c), at 74. viations. Incorrect: “Mr. Adam Smith, Id. 6. See Gerald Lebovits, The Legal Writer, Do’s, 41. Esq.” Correct: “Adam Smith, Esq.” Or: Don’ts, and Maybes: Usage Controversies — Part II, 80 42. ALWD R. 6.11, at 42. N.Y. St. B.J. 64 (July/Aug. 2008). “Mr. Adam Smith.” 43. Tanbook R. 10.2(b)(1), at 74. 7. Bluebook R. 6.2(a), at 73–74; ALWD R. 4.2(a), at When you use the United States 44. Bluebook R. 3.3(b)–(c), at 62; ALWD R. 6.6(b) 29. as an adjective, you may abbreviate it and 6.7(b), at 40; Tanbook R. 3.1(b)(2)(c), at 24–25; as “U.S.” Example: “The U.S. Court of 8. Tanbook R. 10.2(a)(1), at 72, and Redbook R. 5.2, Redbook R. 6.3, at 100. at 89–90. Appeals for the Second Circuit.” 45. See Gerald Lebovits, The Legal Writer, Do’s, 9. Bluebook R. 6.2(a)(ii), at 73; Redbook R. 5.2, at Don’ts, and Maybes: Legal Writing — Part Write the name of a company as 89; see Redbook R. 5.8, at 92. III, 80 N.Y. St. B.J. 64 (May 2008). the company writes it. If the compa- 10. Bluebook R. 6.2(a)(iii), at 73; ALWD R. 4.2(c), at ny abbreviates corporation (“corp.”), 30; Tanbook R. 10.2(a)(1), at 72; Redbook R. 5.3(a), write it as “corp.” If it doesn’t abbrevi- at 90. ate, don’t. 11. Bluebook R. 6.2(a)(i), at 73; ALWD R. 4.2(b), at Legal writers may create special- 29–30; Tanbook R. 10.2(a)(1), at 72; Redbook R. 5.5, at 90–91. ized abbreviations in memorandums, 12. ALWD R. 4.2(h), at 31; Redbook R. 5.11(a), briefs, or other documents. Cite the at 93. complete term and follow it immedi- 13. Bluebook R. 6.2(a)(vii), at 73. ately with the abbreviation, or acro-

54 | June 2009 | NYSBA Journal