Friday, February 12, 2021

Writing Conventions -- Mr. and Ms.

One of the practices that irks me is the reference to the plaintiff in a case as Plaintiff, not the person's name -- by the court.  This happens more often in the district court decisions and memoranda.  The Commissioner never uses the person's name.  As the attorney for the human being, we should always use our client's name.  I am categorical about that.  My client is not defined for the legal record by a temporary status in a single case but by the name by which the person chooses to proceed through life.  If you don't call your client by name in briefs to the Administrative Law Judge, Appeals Council, District Court, or Court of Appeals, start today.

Once we decide to give the client the dignity of the name, the next step is whether we attach the gender specific designator to that name -- Mr., Mrs., Miss, and Ms.  Garner forcefully points out that society does not change the designation for a man based on marital status and neither should we make that differentiation for women.  Taking Garner at his word, we can jettison Mrs. and Miss unless we know for certain that the person prefers to have that descriptor attached to the surname.  We have narrowed our writing conventions to Ms. and Ms. in the majority of writings on behalf of our client.  

I like to take my cues from the Supreme Court.  Those nine Justices decide the legal issues and set the tone for much of how attorneys and courts write.  For example, Chief Justice Roberts uses contractions.  But we focus on the use of Mr. and Ms. today.  Looking at Biestek v. Berryhill, the syllabus refers to Michael Biestek as Biestek.  The syllabus is written by the reporter so does not warrant much persuasive power.  The opinion addresses Biestek by name 66 times.  Justice Kagan introduces Michael in section I and thereafter refers to the petitioner as Biestek.  Justice Sotomayor introduces Michael in the first paragraph of her dissent and then refers to him as Biestek seven more times.  Justice Gorsuch introduces Michael in the first paragraph and then addresses him as Mr. Biestek 13 times.  The lesson that we extract from these three opinions is that there is no hard and fast rule.  

The Seventh Circuit decided Brace v. Saul in August 2020.  Judge Sykes refers to Aaron Brace as Brace 24 times.   

The Eighth Circuit decided Lucus v. Saul in June 2020.  Judge Kobes refers to Eric Lucus by the full name once and simply Lucus 22 times.  

The Ninth Circuit decided Ashe v. Saul in December 2020.  Judge Nguyen refers to Julie Ashe by first and last name once and 33 times by simply Ashe.  Interesting to point point out that court staff prepared the summary and refers to Ashe as Plaintiff which is not the proper status title.  When the case got to the Court of Appeals, Ashe became the plaintiff-appellant and the primary status is the latter, not the former.  Judge Nguyen refers to Ashe or other people seeking benefits as plaintiff when quoting other sources.

The Tenth Circuit decided Carr v. Comm'r, SSA in June 2020, a case pending oral argument next month before the Supreme Court.  Judge Matheson refers to Willie Carr as Mr. Carr eight time, never simply by Carr.  

The Eleventh Circuit decided Walker v. Soc. Sec. Admin., Comm'r yesterday.  Judge Pryor refers to John Walker as that three times and as simply Walker 53 times.  

Of the decisions that I sampled, the Tenth Circuit has a culture of using the gender-specific title and at least four others do not.  Justice Gorsuch hails from the Tenth Circuit and uses that convention.  I submit that using any gender indicator represents a problem for the writer.  

First, I don't know my client's title preference.  Second, the gender identity or title that my client uses or wants is truly irrelevant to my representation in the case.  Third, I have a word count in briefs and especially appellate briefs.  Why waste a word?  As Magistrate Judge Jean Rosenbluth said at a bench bar meeting several years ago on the subject of wasted words, "I will never get that nanosecond back."  Considerations of knowledge, relevance, and efficiency suggest that legal writing abandon Mr. and Ms. in referring to the party absent some reason germane to the case for using them (family law cases for example need a differentiation).  But please, stop referring to your client by that temporary status title.  That is disrespectful to your client's humanity.  

That's my opinion.  Your mileage may vary.  


Suggested Citation:

Lawrence Rohlfing, Writing Conventions -- Mr. and Ms., California Social Security Attorney (February 12, 2021)

1 comment:

  1. I could not agree more. Every one we represent is an individual with a life, a family and their own unique story. Using their name reminds everyone they are a unique person and not just a category. Say their name!