THE SCRIVENER What’S in a Name? by Scott Moïse

THE SCRIVENER What’s in a Name? By Scott Moïse

‘Tis but thy name that is my enemy; DCN, 2019 WL 6318778, at *8 (D.S.C. Thou art thyself, though not a Montague. Nov. 26, 2019) (“While plaintiff pro- What’s Montague? It is nor hand, nor foot, moted Sink Jr. as a lawyer working Nor arm, nor face, nor any other part for Sink PA using his given name, Belonging to a man. O, be some other name! it certainly never acquiesced to his What’s in a name? That which we call a rose use of the GEORGE SINK marks to By any other name would smell as sweet; promote his own independent legal So Romeo would, were he not Romeo call’d, services.”); Hammonds v. Jackson, No. Retain that dear perfection which he owes 1:13-CV-711-MHS-WEJ, 2015 WL Without that title. Romeo, doff thy name, 12867065, at *1 (N.D. Ga. Mar. 16, And for that name which is no part of thee 2015) (“Despite the informality, for Take all myself. convenience the Court generally refers to these unrelated persons William Shakespeare, Romeo and Juliet (Act II, Scene I, lines 38–49). by their forenames.”). Courts have referred to last Poor Juliet. If Romeo had only been and called in the community in names as “last names,” “surnames,” named Romeo Brown or Romeo which he lives and is best known.’” “family names,” and “patronym- McGillicudy or anything but Romeo Stevenson v. Ellisor, 270 S.C. 560, 562, ic” names. See Washington v. Saul, Montague, he could have married 243 S.E.2d 445, 446 (1978). No. CV 1:19-1825-SVH, 2020 WL Juliet and lived happily ever after. 3428852, at *1 n.1 (D.S.C. June 22, Instead, well, you know what hap- What are the components of a 2020) (“These records are likely pened: poison and a dagger, all be- name? those of another individual with cause of their names. Names do not Most people have three names: Plaintiff’s first andlast name . . . .”); usually cause such tragic results, first, middle, and last. Earlier cases United States v. Haas, 986 F.3d 467 but even in our legal profession, referred to first names as “Chris- n.1 (4th Cir. 2021) (“We refrain from they can still create a lot of trouble. tian” or “baptismal” names. See, providing a surname to protect her Although it was about three e.g., William Alexander & Bros. v. privacy.”); City Council of Charleston, centuries too late to help Juliet, Davidson & Davidson, 27 S.C.L. 49, 15 S.C.L. at 490 (“[T]his name may the South Carolina Supreme Court 51 (S.C. App. L. 1841). However, as be as often changed as the patro- actually defined “what’s in a name”: the court of appeals later noted, nymic . . . .”). Note that “patronym- “The word ‘name’ is thus defined “[T]here is no union here between ic” refers to the name derived from in Century Dictionary: ‘A word by Church and State, and no obliga- the father. Children may also have which a person or thing is denot- tion on parents to baptize their the mother’s name, which is called ed; the word or words by which an children.” City Council of Charleston a “matronymic” name, or a hyphen- individual person or thing, or class v. King, 15 S.C.L. 487, 489–90 (S.C. ated version of both parents’ last of persons or things, is designat- App. L. & Eq. 1828). Now, courts names. I located no case, anywhere ed, and distinguished from others; just refer to a person’s first name in the United States, that used the appellational denomination; des- simply as “first name,” “given term “matronymic” when referring ignation.’ ” Koth v. Pallachucola Club, name,” or “forename.” See, e.g., Wade to a last name that was derived 79 S.C. 514, 517–18, 61 S.E. 77, 78 v. Luerre, No. 619CV03576JFAKFM, from the mother, although courts (1908) (holding that taxpayers—not 2020 WL 6828660, at *1 (D.S.C. Oct. have addressed issues related to county tax officials— are supposed 27, 2020) (“The letter further sought a last name that came from the to unravel complicated inheritanc- to re-add Nurse Brezzle as a party mother. See, e.g., Wilson v. McDonald, es that cause errors of property if at some point during litigation 393 S.C. 419, 420, 713 S.E.2d 306, owners’ names on deeds). Later, the the plaintiff was able to determine 307 (Ct. App. 2011) (“Wilson named supreme court was more specific: Nurse Brezzle’s first name.”); George their daughter without McDonald’s “Generally, a person’s name is ‘the Sink PA Injury Lawyers v. George Sink input, giving the daughter the last designation by which he is known II Law Firm LLC, No. 2:19-CV-01206- name ‘Wilson.’ ”). 60 SC Lawyer Middle names, to my knowl- the word “name” in the election edge, have been called simply statute was not limited to the given “middle names” or—when refer- name. However, the court did not ring to a woman’s middle name interpret “Nancy” to be a nickname, that was her last name before she but instead determined that it was was married—“maiden names.” a “derivative” of Ferdinan: “Re- See, e.g., North v. Dorn VA Hosp., No. spondent’s given name ‘Ferdinan’ CV 3:20-3952-JMC-SVH, 2020 WL contains the first three letters of 6802954, at *3 (D.S.C. Nov. 19, 2020) the name ‘Nan cy.’ It is therefore (“Plaintiff’s middle name is some- a derivative, albeit a less common times spelled ‘Neil’ in his complaint one, just as ‘Ric k’ is a derivative of . . . .”); Sanders v. Smith, 431 S.C. 605, ‘Ric hard’ and ‘Su e’ is a derivative 614, 848 S.E.2d 604, 608 (Ct. App. of ‘Su san.’ ” Id. at 563, 243 S.E.2d at 2020) (“Wife failed to show Hus- 446 (spacing in original). However, band committed fraud upon the the court held that nicknames, un- court by suing her in her maiden like derivatives, could not be used name and misrepresenting her on the ballots. Now, the Election address.”). Commission allows a candidate to Courts have not always treat- include a nickname “if it does not ed middle names with the respect exceed 15 letters, does not imply they deserve. The United States professional or social status, is a Supreme Court once stated that derivative of your given name prop- “[t]he law knows of but one Chris- erly acquired or bears no relation tian name, and the omission or to your given name but it is used in insertion of the middle name, or good faith.” S.C. Election Comm’n, of the initial letter of that name, is “Candidate Dos and Donts,” https:// immaterial; and it is competent for www.scvotes.gov/candidate-dos- the party to show that he is known and-donts (2019). In the end, Nancy as well without as with the middle Stevenson won both her lawsuit name.” Games v. Stiles ex dem. Dunn, and the election, becoming the first 39 U.S. 322, 326, 10 L. Ed. 476 (1840); woman in South Carolina to hold see also Conrad v. Griffey, 52 U.S. statewide office. 480, 489, 13 L. Ed. 779 (1850) (“The Nicknames most often seem to middle name forms no part of the cause trouble in cases in which a Christian name of a party.”). party is trying to keep a nickname from being mentioned at trial. Do nicknames have any legal Evidence concerning a defendant’s significance? nickname is not prejudicial when Black’s Law Dictionary defines used to prove something at issue “nickname” as “[a] short name; in a trial, such as the identification one nicked or cut off for the sake of the defendant. See, e.g., State v. of brevity, without conveying an Day, 341 S.C. 410, 422, 535 S.E.2d idea of opprobrium, and frequently 431, 437 (2000). However, use of a evincing the strongest affection or nickname usually cannot be exces- the most perfect familiarity.” sive or repetitious. Id. at 422, 535 In Stevenson v. Ellisor, 270 S.C. S.E.2d at 437 (holding that pros- 560, 561, 243 S.E.2d 445, 445 (1978), ecutor’s referencing defendant’s a candidate for lieutenant gover- nickname of “outlaw” 23 times nor, brought a declaratory judg- during closing argument in mur- ment action to determine whether der prosecution was excessive and she was allowed to use the name repetitious and deprived defendant “Nancy” rather than her given of due process of law, as the nickname “Ferdinan” on the general name was not used to prove any election ballot. The South Carolina matter in controversy.) Election Commission insisted on In a somewhat related is- “Ferdinan,” but the supreme court sue, in Johnson v. McCall, No. CA disagreed, stating that “[w]e do 4:08-3840-CMC-TER, 2010 WL not believe that the word ‘name’ is 972702, at *9 (D.S.C. Feb. 9, 2010), synonymous with ‘Christian name’ report and recommendation adopted, or ‘given name,’ ” and therefore, No. CA 4:08-3840-CMC-TER, 2010

March 2021 61 WL 960335 (D.S.C. Mar. 12, 2010), tion or complaint, if the misnomer federal courts have allowed parties the defendant asked that the court causes prejudice to the defendant, even to proceed to trial without order parties to use only his birth the court may decide to dismiss the being identified by name by looking name, Preston Devron Johnson, pleading. See Cropp v. Golden Arch at the following factors in deciding throughout the trial rather than his Realty Corp., No. 2:08-CV-0096-CWH, whether to allow a party to proceed legal name, Abdullah Qawi Mus- 2009 WL 10710585, at *2 (D.S.C. anonymously: See James v. Jacobson, tafa. The court denied his motion Mar. 31, 2009) (dismissing sum- 6 F.3d 233, 238 (4th Cir. 1993) (re- because (1) the defendant was mons because it named an entity versing trial court’s refusal to allow indicted using his Muslim name; that was no longer in existence, plaintiffs to proceed anonymously (2) Mustaffa was his legal name having been merged into another in a medical malpractice case); Doe and had been for some time; (3) corporation); Sweeney v. Greenwood v. Howe, 362 S.C. 212, 218–19, 607 Mustaffa was his wife’s legal name; Index-Journal Co., 37 F. Supp. 484, 485 S.E.2d 354, 356-57 (Ct. App. 2004) (4) many witnesses knew him as (D.S.C. 1941), disapproved on other (reversing trial court’s denial of “Qawi;” and (5) the trial judge un- grounds, United States v. A.H. Fischer motion to allow plaintiff to proceed derstood that “he is not generally Lumber Co., 162 F.2d 872 (4th Cir. anonymously because of issues of known by his name Preston Devon 1947) (““If [a] misnomer or mistake sexual abuse that were peripheral Johnson.” The judge then raised the on the part of the Plaintiff consti- to legal malpractice case). issue of prejudice at voir dire and tutes a fatal defect, that is a defect Also, an unknown party in excused the only juror who indicat- of substance and not merely one state court may be sued by stating ed any kind of prejudice towards of form, the process would be void in the pleadings that the name is Muslims. Under the circumstances, ab initio and . . . there would be, unknown and designating the un- the federal magistrate judge found as recognized by Rule 12(b), both known party by any name (usually that the defendant had not demon- insufficiency of process [under Rule referred to as “John Doe” or “Jane strated that the prosecution’s 4(a) and insufficiency of service of Doe”) and the words “whose true reference to his Muslim name was process [under Rule 4(b)].”). name is unknown.” S.C. R. Civ. P. 10(a) so prejudicial as to render his trial (1); see also S.C. Code Ann. § 38-77- fundamentally unfair. Protect the privacy of names in 180 (allowing “John Doe” actions court documents. against unknown defendants in Ensure that names in correspon- Federal courts require redac- automobile accidents). When the dence are correct. tion, before filing and serving, of party’s real name is later identi- People want their names to be the names of minors (only include fied, the plaintiff must amend the spelled correctly, and with Google their initials. See Fed. R. Civ. P. pleadings to name the party. S.C. R. and other internet databases, there 5.2(a). South Carolina state courts Civ. P. 10(a)(1). Federal rules do not is no excuse for failing to take the require redaction of the names of explicitly call for John Doe plead- few extra minutes to check. While minor children. If a minor is the ing, and some jurisdictions do not you are checking, search the in- victim of a sexual assault or the allow it, but the Fourth Circuit per- ternet for the person’s gender and victim in an abuse or neglect case, mits these suits against “real, but do not assume that Michael, Scott, the minor’s name must be com- unidentified, defendants.”See Schiff and Alex are males or that Robin, pletely redacted and a term such v. Kennedy, 691 F.2d 196, 197–98 (4th René, and Kay are women. Peo- as “victim” or “child” should be Cir. 1982). ple also want the names of their used. In all other cases, only use businesses spelled correctly. They the minor’s first name and first Conclusion also expect the punctuation to be initial of the last name (i.e., John No doubt about it, names are correct, as some businesses have S.), or only the minor’s initials (i.e., important to people. As the fic- a commas before LLC or similar J.S.)). See In re Revised Order Con- tional Romeo and Juliet and the business abbreviations, and—based cerning Pers. Identifying Info. & Other real-life Hatfields and McCoys can on personal experience with some Sensitive Info. in Appellate Ct. Filings, attest, names can cause real prob- of my clients—that matters. Cf. 407 S.C. 607, 608, 757 S.E.2d 421, lems. In legal writing, while not as Lovine v. Goodridge-Call Lumber Co., 421–22 (2014). deadly, the problems go beyond 153 N.W. 517, 517 (Minn. 1915) (ad- Neither the state nor feder- just embarrassment for making dressing whether “Goodridge-Call al rules allow a party to proceed a mistake—which happens to all L’b’r Co.” was sufficient notice anonymously, but in certain cases, of us—but misuse of names can because the actual name had no a party may be allowed to pro- lead to lawsuits over real estate apostrophes). ceed as “John Doe” or “Jane Doe” or documents; contracts and other some similar pseudonym. However, transactional documents; and alle- Ensure that names in court docu- courts sometimes allow parties to gations of defamation, violation of ments are correct. proceed as “John Doe” plaintiffs copyright, trademark, privacy, and Although courts may excuse or defendants to protect privacy other laws. Take time to get names misnaming parties in a complaint concerns. Although proceeding right. They just might save your and allow them to amend the cap- anonymously is extremely rare, lawsuit.

62 SC Lawyer