by Susie Salmon THE LEGAL WORD
Susie Salmon is Assistant Director
of Legal Writing and Associate Clinical
Professor of Law at The University of
Arizona, James E. Rogers College of Law.
Before joining Arizona Law, she spent
nine years as a commercial litigator at
large firms in Tucson and Los Angeles.
1. Yes. The letter S.
2. And an S no longer looks like an F.
3. Different sources disagree whether you capitalize prepositions longer than five letters.
4. Although most lawyers follow the initial-caps
convention, as Garner puts it, “Commonness
does not make it correct. It remains a mistake.”
At first blush, it may seem there’s not much to write regarding cap-
italization. Capitalize proper nouns. Capitalize the first word in a sen-
tence. Easy enough, right? As you’ll see, though, this topic may cause as
much confusion and inconsistency as any (and not just because texting,
Facebook, and other informal modes of communication have eroded
our fidelity to the rules we learned as children).
Capitalization rules vary across languages and evolve over time. Anyone who has perused facsimiles of the original Declaration of Independence intuitively recognizes that. 2 Maddeningly enough, the rules also
vary across style guides, but you can rely on a few basic principles. I’ll
start with a few rules most helpful to legal writers, and then I’ll tackle
some more general precepts.
Bryan Garner advises to capitalize the word court when referring to the
United States Supreme Court, the court you are addressing, or the high-
est court in the relevant jurisdiction. So, for example, if you filed a motion
in Pima County Superior Court, you would capitalize court when writ-
ing “we ask this Court to dismiss,” when referring to the United States
Supreme Court, or when referring to the Arizona Supreme Court.
My colleagues have alerted me, however, that both The Bluebook
and The ALWD Guide disagree with Garner. Both prescribe capitalizing
court only in the first two instances: when referring to the United States
Supreme Court or to the court you are addressing.
My rule? Pick one option, and be consistent.
Many of you may work in offices where your word-processing
software provides custom macros that format your argumentative headings for you. Unless you are the person who customizes those macros—or unless you don’t have those macros—
you may want to avert your eyes until the next section.
Probably because I worked in law offices that used these
macros, I had always believed that the first-level heading in
a brief—following Roman numeral I—should be in all caps,
and that the second-level headings should be in initial caps.
(Initial caps means that you capitalize the first letter in each
word—except for mid-sentence articles, conjunctions, and
Bryan Garner disagrees. Because an effective argumentative heading is usually a complete sentence, he advises capitalizing only the first word in that sentence, unless a word
would be capitalized under some other rule. 4 He extends this
advice to all argumentative headings, including first-level ones.
This makes sense. Frequent capitalization makes text harder
to read. Your argumentative headings convey essential points;
you want them to be easy to consume and digest.
Where you create a defined term in a document—whether a contract, litigation materials, or another paper—capitalize that term.
For example, in a contract, seller is often a
defined term that refers to a particular person or entity. Define seller once and then
capitalize it thereafter where you use it
to signify that particular person or entity.
Similarly, if George Smith is the defendant
in your case, and you wish to refer to him
throughout your pleading by that role, you
would capitalize defendant (but not if you
refer to him as “the defendant”). The Fair
Debt Collection Practices Act can become
“the Act.” The Legal Skills Competition
Board can become “the Board.”
We’ve all read a motion or brief littered
with arbitrary capitalization. Like any other
device used for emphasis, capitalization loses
impact with overuse. And resist using capitalization to convey mockery or sarcasm.
Common Capitalization Conundrums
• Lowercase seasons (e.g., I am really
busy in the spring semester).
• Lowercase geographic directions unless
they are part of a recognized regional
term or proper name (e.g., the American South, South Tucson, but turn
south when you reach the tractor).
• Capitalize holidays (e.g., Fourth of
• Capitalize titles of statutes (e.g., Fair
Credit Reporting Act).
The modern trend is toward less capitalization (also known as down-style). When
in doubt, capitalize sparingly. Limit all caps
or initial caps to short headings. Don’t overuse the emphatic capital or the snarky capital. And where you face conflicting rules,
choose one, and be consistent.