By Christopher J. Bayh, Barnes & Thornburg LLP
In the IndyBar Appellate Practice Section, one of our main focuses is legal writing. We think about substantive strategies for persuading a reader, but also subtler, stylistic trends. We relish a good debate over things like fonts, footnotes, and how-many-spaces-after-a-period. We’re just geared that way. (Yes, we’re great fun at parties.)
One “hot” trend we’ve been following is the use of contractions in briefs and opinions. There is (there’s?) a growing trend in legal writing to advocate in plain English—that is, write exactly how you would talk. That makes your writing easier to digest. But how informal should you really be? At some point, isn’t there some tension between informality and professionalism? If so, where do you draw the line?
Legal writing scholar Bryan Garner has long advocated for contractions, having written on the subject for at least 20 years. Ross Guberman, another prominent scholar in the field, has polled over 1,000 judges on this question, and found a near 50-50 split among them—though the anti-apostrophe faction has much stronger feelings than the pro- side.
A few weeks ago, we came across one of the strongest signs that the pro-contraction trend may be gaining steam. Many of us have followed the case of Klaassen v. Indiana University, which quickly made its way through the federal court system, earning successive decisions from District Judge Damon Leichty (N.D. Ind.), Seventh Circuit mainstay Judge Frank Easterbrook, and Justice Amy Coney Barrett. It was Judge Leichty’s decision, in particular, that caught our eye. (Disclosure: Judge Leichty was recently this writer’s law partner.)
Judge Leichty, now in his third year on the bench, wrote a very powerful and clear opinion, which reads easily despite its 101 pages. Most notable to us was the free—and effective—use of contractions. In searching for just the “n’t” contractions—the same method Guberman uses, thanks to the magic of Ctrl+F—we find 115 instances in the opinion. But as a reader, one really doesn’t notice it unless one is looking for it. It’s a thoughtful, serious piece of legal writing, and the contractions do not make it less so. (For those who are wondering: Judge Easterbrook’s four-page affirming opinion has one contraction. And does it invoke Dostoyevsky and Shakespeare? You bet!)
Of course, as advocates, embracing the apostrophes in our legal writing is a bit more of a gamble. But it’s something to seriously consider. Take a look at the opinion above, and see if it might change your mind—or reinforce your current choices.
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