|Oregon State Bar Bulletin APRIL 2008|
Gee, What Are We to Do?
By Suzanne E. Rowe
Shocking though it seems, some writers find reference books intimidating. The very style manuals and dictionaries that make writing so logical and so fun are deemed overwhelming.
Some intimidation is caused by size; my New Oxford American Dictionary weighs in at almost 10 pounds. Some problems are with tradition; Strunk & White brings back bad high school memories (though most curmudgeons still adore it). Still other difficulties result from the crush of work that leaves little time for leisurely locating the needed tome on the shelf, reviewing its index and ruminating over rules.
Lawyers in Oregon have a simple reference guide at their fingertips: the Oregon Appellate Courts Style Manual (OSM). This manual contains an easy-to-read style guide that fills just 39 pages. It’s relatively recent — the latest version was published in 2002 — and the OSM is available online, so you can’t lose it on a crowded shelf in your office.
The goal of the OSM is to promote consistency in the state’s appellate opinions, not to dictate rules to lawyers. The OSM admits that it’s not exhaustive. But surely if the guide is good enough for appellate judges drafting opinions, it can also guide us.
The OSM covers writing style on pages 59 through 98, just after sections on formatting, citation and quotation. The four major sections of the style guide are: Spelling, Font and Treatment of Words; Punctuation; Word Usage and Conventions; and Common Grammatical and Style Problems.
Here are some of the highlights. Most of the examples below are taken directly from the style guide to give readers a feel for the OSM. Be sure to note the example about dancing on tables and the reference to Officer Krupke of West Side Story fame. Someone in Salem is having fun!
Foreign words that lawyers commonly use are not italicized. The question, of course, is which words are commonly used. For the record, the OSM list includes habeas corpus, mandamus, pro tempore, en banc and remittitur. Other words may be common, too, but they didn’t make the OSM list of examples.
The following words are among the 42 that are italicized (and presumably less common): de novo, prima facie, res judiciata and voir dire. While you and I may have chosen to shuffle the two lists around, the key is consistency. A few more obvious choices on the italicized list of less common words are arguendo, inter alia and res ipsa loquitur, but we mostly use those to show off our deep knowledge of Latin and should avoid them anyway.
The most useful information in the capitalization section explains that we should capitalize only complete official titles, not abbreviated titles. Here’s a short excerpt:
1997 Legislative Assembly — the legislature
City of Eugene — the city
Officer Krupke — the officer
Oregon Court of Appeals — the court
Oregon Supreme Court — the court
Senator Jones — the senator
Note that the appellate courts do not capitalize themselves. They reserve that honor for the United States Supreme Court, which is "the Court." Also, the Court of Appeals for the Ninth Circuit gets the honorifically capitalized "Ninth Circuit."
Three state entities get to be capitalized even when abbreviated: the House, the Senate and the Bar. Other capitalized exceptions include the Governor and the Attorney General, but not the secretary (when referring to the Secretary of State — my apologies, Mr. Bradbury).
Additional information explains the capitalization of days of the week (yes) and seasons (no), as well as Class, Schedule and Chapter when they are used to refer to particular items. The OSM guide doesn’t capitalize generic governmental terms like "state" and "federal."
Thus, we would write about the Monday last spring when the court considered a Chapter 7 bankruptcy petition.
Numbers and Dates
Providing a refreshing break from the Bluebook, the Oregon courts write out only numbers one through nine, rather than one through ninety-nine. A number that begins a sentence, however, is always written out. Clear suggestions are provided for large numbers (e.g., 5 million people), fractions (e.g., four and one-half years old) and percentages (e.g., fifteen percent in text, but 15% in tables).
Two of my pet peeves are addressed, too. First, in writing about time, always include minutes and either a.m. or p.m. (note that AM, am, PM and pm are not the options given). Thus, the argument will begin at "8:00 a.m." Second, no endings are used in writing about dates. That argument will be held on "September 19" (not the 19th).
The punctuation section marches through apostrophes, colons, commas, dashes, hyphens, lists, parentheticals and semicolons. I’ve already written on possessives (Know Your Nouns, January 2007), and I’m happy that the courts agree with my advice. An interesting addition concerns the use of "Court of Appeals" as either a possessive or a modifier. When the court’s name is used in a possessive sense, an apostrophe is necessary: "the Court of Appeals’ reasoning." However, when the court’s name is used to modify the following noun, no apostrophe is needed: "the Court of Appeals opinion."
The one point where the OSM style guide wanders into intimidating use of grammatical jargon is in the explanation of comma usage. The good news is that the examples are so clear that intimidated readers can skip the explanations and learn the key rules from the examples. This section also provides the fun example of dancing on tables: "I will go to Elaine’s New Year’s Eve party and dance on the table." I want to meet both Elaine and the dancer!
The guide’s discussion of hyphens is quite useful. Don’t use a hyphen following -ly adverbs in compound forms like "her eagerly awaited homecoming." Do use a hyphen when a compound adjective appears before the verb: "the court-ordered examination was inconclusive" (but "the examination was court ordered").
[As an aside to the editors of this esteemed bar journal, the appellate courts agree with me on the use of the "Oxford" comma. Not that I’m pressing the point.]
The third section of the OSM addresses 45 confusing words or word pairs. A few choice examples are noted below to whet your appetite.
Appeal v. Review. When the higher court must hear the case, use the term "appeal" to show the party’s action. When the higher court has discretion, the party "seeks review."
Case Law. It’s still two words.
Finding v. Holding. The court finds facts. The court holds when it applies the law to the facts. However, a holding and a general statement of the law are not the same. Note these examples:
The trial court found that the officer lacked subjective probable cause.
The Court of Appeals held that the search was invalid because the officer lacked subjective probable cause.
The Supreme Court stated that probable cause has both an objective and a subjective component.
Parties. Appellate courts typically refer to parties by their roles in the trial court: plaintiff, defendant and claimant. The OSM gives alternative terms for parties in cases involving domestic violence, civil commitment, termination of parental rights, juvenile delinquency and juvenile proceedings.
Pleaded v. Pled. The appellate courts still prefer pleaded.
That v. Which. Forgive me for repeating (Word Choices, April 2007), but if the courts care about the difference between "that" and "which," shouldn’t we? Here are the examples in the OSM:
The decision that the judge made regarding suppression of evidence was contrary to the legal standard.
The decision, which caught the legal community by surprise, was contrary to the legal standard.
The last section of the style guide addresses collective nouns, parallel construction, passive voice and verb tenses. The last has not yet been discussed in this column, so I must add my two cents.
Verb tenses can cause problems when two things happened in the past, but one thing happened farther back in the past than the other. In the guide’s example, a petitioner testified at a post-conviction hearing about an earlier request to his lawyer. You can’t use the same simple past tense for both verbs.
Incorrect: Petitioner testified at the post-conviction hearing that he asked his trial lawyer to investigate his alibi defense.
To show that the petitioner’s request happened before the hearing, you have to use the past perfect tense. That’s a fancy way of saying that you have to add "had" before the verb that happened earlier.
Correct: Petitioner testified at the post-conviction hearing that he had asked his trial lawyer to investigate his alibi defense.
Just Google "Oregon Style Manual" and the lovely OSM style guide pops up. The address is http://www.publications.ojd.state.or.us/Style%20Manual%202002.pdf.
You can bookmark it for future use or download the PDF version. Using the "find" function to locate guidelines on particular style points is easy.
Again, the OSM does not intend to dictate anything to anyone. It’s a guide for those who write our judicial opinions. Or course, imitation is the fondest form of flattery, and if you’d like for a judge to drop your prose into an opinion, following the court’s own style guide couldn’t hurt.
Editors’ note: The OSB Bulletin of course follows a slightly different set of style guidelines, one geared specifically towards magazines, not appellate decisions or legal practice. Bulletin style is primarily dictated by the Associated Press Stylebook 2007. Lest readers wish to point out all the places this magazine is not following the OSM style, suffice to say, yes, we know that. As author Suzanne Rowe points out though, consistency is key. As for her Oxford commas, we remove them with wild abandon and great satisfaction. (We can’t often find any other "mistakes" of hers to fix.)
ABOUT THE AUTHOR
Suzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. She is grateful to Amy Nuetzman of Oregon’s Academic Learning Services for comments on this article.
© 2008 Suzanne E. Rowe