This morning, my colleague Whit Pierce forwarded me a legal writing tip from Bryan A. Garner, a well known American lawyer and lexicographer who has authored a number of books on legal writing. Garner’s tip was that in writing a brief, you should avoid “depersonalization” of your opponent by referring to him/her/it/them with a legal label such as “plaintiff” or “appellant.” Garner gave a number of reasons for this advice, but one that he did not mention was the possibility that such depersonalization might run counter to a rule of court. For example, Rule 28(d) of the Federal Rules of Appellate Procedure specifically addresses “References to Parties” in briefs (and oral argument) and states:

In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.”

My instinct, likely learned at some point in law school, is to depersonalize the other side in a brief (and at oral argument, and at trial).  But because of this rule of appellate procedure, I am particularly cognizant that I must go against this instinct in my Fourth Circuit briefs.  In fact, I just filed a brief in the Fourth Circuit this morning.  After having received Garner’s tip, I reread the brief one final time before filing, paying particular attention to my use of the opposing party’s name.  I have to admit, the brief read much more smoothly with the party’s name than it would have if we had used “appellant.”  And perhaps most importantly,we followed the Federal Rules of Appellate Procedure…

-Patrick Kane