In a litigation document, are first names too informal?
A commenter has asked if using a person's given name is too informal in a litigation document.
If you're not using a party appellation (Plaintiff, Movant, Appellant, etc.), using the surname is a good choice. Most lawyers also omit Mr., Miss, Mrs., and Ms.
But if there are two people with the same last name, and if you do not need to keep anyone's identity confidential, I believe given names are appropriate.
Any practicing lawyers care to give an opinion?
Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand
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If you're not using a party appellation (Plaintiff, Movant, Appellant, etc.), using the surname is a good choice. Most lawyers also omit Mr., Miss, Mrs., and Ms.
But if there are two people with the same last name, and if you do not need to keep anyone's identity confidential, I believe given names are appropriate.
Any practicing lawyers care to give an opinion?
Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand
| Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
If I'm drafting a pleading for a married couple, I refer to them as "the Howards" or as "plaintiffs Howard," for example.
If the case is a mess (such as real estate litigation among family members), I might use first names or relationship names (Mother, Uncle, etc.).
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In divorce litigation it is common use first names in pleadings, e.g., "Mathilda and James were married on June 13, 1992, in Seattle, King County, Washington".
If you do use first names in a domestic relations case, don't call your party "Mary", but call the other party "Defendant" or "Smith". It is transparent and petty.
Wayne says:
Excellent advice.
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When faced with this situation, the California courts will call parties by their first names, using a footnote at the first instance: "For the sake of clarity and readability, we will refer to the parties by their first names. No disrespect is intended." I follow their example.
Wayne says:
Excellent. Thank you.
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I'm a prosecutor. Although I don't refer to defendants by their first names in briefs, I refer to them with reference to the offenses they committed (allegedly). For instance, a defendant accused of theft is referred to as "the thief." In one case, the judge actually adopted my terminology in one of his pre-trial rulings, referring to the defendant as "the embezzler."
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You have set forth the approach I typically follow. Namely, I call the parties by their party names, e.g. Plaintiff, Defendants. If I need to differentiate, I call individual parties by their last name, e.g. Smith, Jones.
If the parties have the same last name, I call them by their given name, e.g. Tom, John
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The prosecutor's method strikes me as being somewhat unseemely.
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When I have multiple last names and more than one person of a particular gender, e.g., John, Fred, Mary, and Ellen Smith, I use first names when I need to refer to a particular Smith unless their is some obvious title I can give, like Testator or Executor.
Wayne says:
Excellent suggestion.
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I've used a first name in a very long brief for a personal injury plaintiff (after giving her full name) in an action against entities. I think it appropriate and emphasizes the point of her as an individual. I would be less apt to do that for an opponent however, because it seems rude.
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I teach my students a general rule not to use first names only in legal writing. But then I give them two exceptions where such usage is permissible and even preferable: (1) when multiple parties or involved persons have the same last name (often in family law, probate, and family-business-dispute situations) and (2) when the person is a child.
Wayne says:
I agree, and what you're teaching seems to have good support among practicing lawyers.
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I agree that the first names are fine to differentiate between two people with the same surname. And I definitely recommend using the names rather than titles such as movant, appellant, etc. An exception is that I will sometimes objectify my opponent with such a title while humanizing my client with her name.
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