By Ian Pisarcik, Legal Publications Attorney Editor
There is a scene in the 2001 film A Beautiful Mind where John Nash’s wife Alicia, played by Jennifer Connelly, discovers that the door to an abandoned tool shed at the edge of the property in a grove of trees has been left ajar. Alicia enters the shed and discovers that the walls are covered with newspaper and magazine clippings. Random words and numbers are scribbled in black marker over the clippings. Thin agricultural rope connects words, images, and numbers. It is in this moment that Alicia realizes the extent of her husband’s mental illness. Though John Nash believes that the clippings are part of a code that can be deciphered in order to identify the exact position of a nuclear bomb being transported somewhere on the eastern seaboard, Alicia sees the installation for what it is: the rambling scrawls of a man deep in the throes of schizophrenia.
This scene often comes to mind when I read complex hypotheticals or doctrinal illustrations that identify parties by unrelated letters, or worse, switch between unrelated letters, proper names, and normative categories. The following is a common example:
A, a contractor, agrees to build a house for B. C, a subcontractor, agrees with A to lay the foundation for $50,000. C supplies goods and services worth $25,000 for which contractor made progress payments aggregating $15,000 as required by the subcontract. C then breaches by refusing to perform further. A reasonably spent $40,000 to have the work completed by D, another subcontractor. C sues A for reasonable value of benefits conferred and the contractor counterclaims for breach of contract. Should plaintiff recover the benefit conferred on defendant for which plaintiff has not been paid?
The above hypothetical distracts the reader and creates unnecessary cognitive demands for two reasons:
Meaningless letters, and
A lack of consistency.
The solution to this problem often depends on the subject matter and the audience. Normative categories (e.g., general, plaintiff) are often helpful in contract hypotheticals written for other lawyers. For example:
General agrees to build a house for owner. Sub agrees with General to lay the foundation for $50,000. Sub supplies goods and services worth $25,000 for which General made progress payments aggregating $15,000 as required by the subcontract. Sub breaches by refusing to perform further. General reasonably spent $40,000 to have the work completed by someone else. Sub sues General for reasonable value of benefits conferred and General counterclaims for breach of contract. Should Sub recover the benefit conferred on General for which Sub has not been paid?
Ohio First District Court of Appeals Judge Mark Painter, on the other hand, urges lawyers drafting briefs to remember that parties have names. Judge Painter notes that “when we use procedural titles, the reader must translate to understand what we mean.” Moreover, “the procedural titles change throughout the case, but names remain the same.” Also, “using names humanizes your client.” Finally, Judge Painter urges lawyers to be consistent. He notes that he once read a brief stating “Defendant-Appellant Mary Jones (hereinafter usually referred to as Jones).” Usually?
Whether you decide to use normative categories or proper names depends on the situation. But unless you want to turn your reader’s office into a mock-up of John Nash’s tool shed, avoid using meaningless letters, or switching heedlessly between meaningless letters, normative categories, and proper names.