SC Lawyer, March 2004, #7. The Scrivener March 2004 Capitalizaton.

• Author: By Scott Mo\xEFse

South Carolina Lawyer

2004.

SC Lawyer, March 2004, #7.

The Scrivener March 2004 Capitalizaton

South Carolina LawyerMarch 2004The Scrivener March 2004 CapitalizatonBy Scott MoïseCapital letters show importance, notice, and emphasis in legal writing. Statutes or judicial decisions sometimes mandate capitalization of terms in legal documents in certain contexts so that the words will be noticed. See, e.g., S.C. Code Ann. § 15-48-10 (Law. Co-op. Supp. 2002) (requiring notice of arbitration provision to be typed in underlined capital letters on the face of agreements); Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., 843 F. Supp. 1027, 1039-40 (D.S.C. 1993) (holding that contract effectively disclaimed warranties because, among other things, the disclaimer was conspicuous since it was in bold, capital letters). Typically, however, capitalization is used to show the importance of-or to emphasize-a particular person, place, or thing. The Bluebook, particularly Rule 8 (for general use) and Practitioners' Notes Rule P.6 (for use in court documents and legal memoranda), specifically addresses when to capitalize in legal writing. Basic rules of grammar fill in the blanks left by the Bluebook.

1. Common Rules of Capitalization

   1. Proper Nouns

      Capitalize the names of particular people (including officials, groups, governmental offices, or governmental bodies) places, or things. Do not capitalize unless you are referring to a particular person, place, or thing.

      * The South Carolina Legislature is in session. (BUT: Certain legislative acts have come under increased criticism during this election year.)

      * We hired Dr. Thomas F. Moran as our expert on health care. (BUT: He was our family doctor when we lived in Rock Hill.)

      * Tom took us to see the Lincoln Memorial when we visited him last summer. (BUT: William was disappointed that he could not get close to the memorial.)

      * The Beachfront Management Act had a profound effect on coastal development. The Act gave hope to landowners, but it gave headaches to environmentalists. (BUT: Representative Smith intends to convince his fellow legislators to support an environmental act that protects coastal waters.)

      * The President spoke to union members about employment. (BUT: Under our form of government, the president is elected by the electoral college. He was hoping for a presidential pardon.)

      Do not confuse a formal name of a particular person, place, or thing with the general term of classification, even if it refers to that particular person, place, or thing.

      * I was surprised to see my mother come into the courtroom with the jury pool. Not surprisingly, Mother was struck for cause by the judge. (NOTE: In the first sentence, "mother" is her generic title even though I am referring to my own mother. In the second sentence, "Mother" is the actual name by which I call her, so it is capitalized.)

      * Walter met his star witness at the Greenville-Spartanburg International Airport. The witness was slow in getting through the airport because of the crowds.

   2. Headings and Titles

      In headings and titles, capitalize: (1) the first word, (2) the first word after a colon, and (3) all other words except:

      * articles (a, an, the);

      * conjunctions of four or fewer letters (examples: and, both, but, for, nor, then, yet, as, if, when); and

      * prepositions of four or fewer letters (examples: by, down, for, from, in, into, of, off, on, over, to, up, with).

      * Monica's law review article, "Liberty and Justice for All: A Plaintiff's Analysis of Civil Rights Litigation," was ready for the spring edition.

      * I asked Susan to work on the section of the brief entitled "The Debtor Is Entitled to Relief from the Automatic Stay."

2. Capitalization Rules Particular to Legal Writing

   1. Courts

      Capitalize the word "court" when referring to a court by its full name or when referencing the U.S. Supreme Court:

      * Justice Toal allowed our class to watch Erin's oral arguments before the Supreme Court of South Carolina.

      * The Supreme Court actively questioned Will about his position concerning HIPAA preemption.

      In briefs, capitalize "court" when you are referring to: (1) the court to which you are submitting the brief or (2) the U.S. Supreme Court. Otherwise, do not capitalize the word "court."

      * This Court ordered the parties to complete mediation by March 2. (NOTE: This would be written in a brief to the court that issued the order referenced in the sentence.)

      * Justice Pleicones wrote the court's opinion concerning whether a motion to amend may be immediately appealed. (NOTE: This would be written in a brief to a court other than the one in which Justice Pleicones issued the opinion.)

      * Professor Wedlock's class read the Court's opinion in Marbury v. Madison.

   2. Constitutions

      Capitalize the word "constitution" when referring to a constitution by its full name or when referencing the U.S. Constitution.

      * The South Carolina Constitution was written in 1895.

      * All of South Carolina's constitutions were displayed in the law school library.

      * Senator Hollings stood on the floor of the Senate, holding a copy of the Constitution.

      Capitalize parts of the U.S. Constitution when referencing them in the text of a sentence, but do not capitalize the parts in citations.

      * the Fifth Amendment

      * Article I, Section 7, Clause 1 of the Constitution requires all bills for raising revenue to originate in the House of Representatives. (This article would be cited as follows: U.S. Const. art. I, § 7, cl. 1.)

   3. Judges and Justices

      Capitalize "judge" or "justice" only when: (1) giving the name of a particular judge or justice or (2) when referring to a U.S. Supreme Court justice.

      * Ainsley has the highest respect for the judge's reasoned decisions, regardless of whether the ruling is in her favor.

      * Kenny asked Judge Anderson if he would speak at the Young Lawyers' seminar.

      * The Justices at the U.S. Supreme Court denied our petition for certiorari.

   4. State

      Capitalize "state" only when: (1) naming a state by its full, formal title; (2) the word it modifies is capitalized; or (3) referring to a state as a governmental actor or party to a litigation.

      * Governor Sanford proclaimed, "The State of South Carolina stands behind the troops and awaits their speedy and safe return."

      [NOTE: Typically, the word "state" would not be capitalized in this situation. If the writer is referring to "state" in its generic sense-as a territorial and political division-it should not be capitalized. See, e.g., Note, No Bad Puns: A Different Approach to the Problem of Personal Jurisdiction and the Internet, 116 Harv. Law Rev. 1821, 1834-35 (2003) ("Asahi's sole relevant contact with the state of California, where the plaintiff filed suit, was that its valves ended up in a California motorcycle shop . . . .") (emphasis added); Note, International Law as an Interpretive Force in Federal Indian Law, 116 Harv. L. Rev. 1751, 1763 (2003) ("[T]he Supreme Court would not likely permit the state of New York to condemn all Catholic churches in the state . . . .") (emphasis added)].

      Other examples of the correct capitalization of the word "state" are as follows:

      * In this state, we followed Lou Holtz's drive to eliminate litter. ("State" refers to a generic geographical and political subdivision and is not part of the full, formal name of the state.)

      * Mr. Hardee was appointed to be the State Highway Commissioner. ("State" modifies "Highway Commissioner," which is capitalized because it is part of a formal title.)

      * The defense argued that the State's witness should not be allowed to testify about hearsay. ("State" is capitalized because it is the party to litigation.)

   5. Federal

      Only capitalize "federal" when the word it modifies is capitalized or it is part of a proper noun.

      * the Federal Register

      * the Federal Rules of Civil Procedure

      * the federal rules

      * the federal courts

   6. Party Designations in Court Documents and Memoranda

      Capitalize party designations (such as "plaintiff," "defendant," "appellant," "appellee," "petitioner") in a brief or court document only when referring to the particular parties in that particular case:

      * The Court has already ruled against Plaintiff's objections to our subpoena.

      * The plaintiff in the Brunson decision unsuccessfully argued against precedent. The Plaintiff in our case is attempting the same argument.

   7. Titles of Court Documents in Court Documents and Memoranda

      Capitalize the full or shortened titles of documents that have already been filed or served in the case. Do not capitalize the generic name of a document that has been filed or served.

      * We are attaching the Defendants' Responses to Interrogatories as Exhibit 1 to this motion.

      * Defendants' interrogatory responses never identified even one expert witness.

      Finally, although these rules ordinarily should be followed, a writer may capitalize letters and even entire words for emphasis even though they should not ordinarily be capitalized. For example, when referring to an insurance policy in a written document in which the policy is a primary focus, you may reference the entire policy, followed by the words [hereinafter "Policy"] or simply "Policy" to show reference to a particular insurance policy in the remainder of the document. That device makes it easier for the reader to distinguish when the writer is discussing the particular insurance policy at issue and not the generic term "policy." For additional rules on capitalization, please see The Gregg Reference Manual or another good grammar book to fill in the blanks left by the Bluebook.

      Copyright (c) 2004 by the South Carolina Bar. All rights reserved. No part of this publication may be reproduced without written permission.