Making Defined Terms Work For Your Legal Reader

February 14, 2023

I can’t count the number of times in my twenty-four years as a legal writing professor that I’ve had the following exchange with new acquaintances:

“So what do you do for a living?”

“I teach legal writing at Wake Forest Law.”

“Oh, so you’re the one who teaches law students how to write so that no one can understand it.”

Ha ha. Very hilarious. (Insert eyeroll emoji.)

Actually, I (and most legal writing professors I know) work quite hard to teach law students how to write precisely, clearly, and concisely, so that everyone can understand what they write. So why does legal writing still get such a bad rap? What practices that persist make it difficult for readers to navigate our writing?

One culprit, I think, is the ineffective use of defined terms—shorthand designations we use throughout our documents to refer to someone or something we’ve named in full. Here’s an example:

Plaintiff Joseph Jones (“Plaintiff”) filed this action against Defendant Pepperdine University (“Pepperdine”) alleging breach of an employment contract (“the Contract”).

Many legal writers are prone to defining terms when it’s not necessary. And even when defining terms is necessary, many legal writers don’t do it effectively.

Instead of mindlessly including defined terms, we should do it only when it will help the reader avoid confusion. Eliminating unnecessary defined terms allows the reader to focus on the content of our writing, which is one goal of all legal writing but is especially important in persuasive writing.

In the above example, assuming Joseph Jones is the only plaintiff in the case, there is no need to tell the reader you’ll be referring to him as “Plaintiff” in the rest of the document; the reader will know from context that “Plaintiff” refers to Joseph Jones. (The same would be true if you decided to call him “Mr. Jones” instead of “Plaintiff.”) Likewise, there is no need to tell the reader you’ll be referring to “Pepperdine University” as “Pepperdine” in the rest of the document; the reader will know from context that “Pepperdine” refers to Pepperdine University. And if the employment contract is the only contract at issue in the case, there is no need to tell the reader you’ll be referring to it as “the Contract” in the rest of the document. Eliminating the unnecessary defined terms would result in this straightforward sentence:

Plaintiff Joseph Jones filed this action against Defendant Pepperdine University alleging breach of an employment contract.

Certainly, defined terms can be helpful to our readers in many instances. Here are three:

If a party is a business with a long name, using a defined term is wise. For example, one of my writing assignments involved a party named Premier Business and Financial Solutions, Inc. My students defined it as (“Premier”); if they hadn’t, imagine the clunky briefs I would have had to wade through!

If there are multiple plaintiffs or defendants, using a defined term adds clarity, as in Edward Johnson and Rebecca Malone (“Plaintiffs”). The defined term is clear and helps avoid the clutter that would result from using Mr. Johnson and Ms. Malone over and over in the document.

If a party is known by a commonly recognized acronym, using the acronym as a defined term is helpful to the reader, as in Defendants were charged with multiple violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). But don’t routinely use obscure or made-up acronyms. As one D.C. Circuit judge wrote in 2014 in a widely publicized benchslap,

The use of obscure acronyms, sometimes those made up for a particular case, is an aggravating development of the last 20 years. Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means. Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.[1]

When you do need to use defined terms, follow these best practices:

• When using an acronym as a defined term, use capital letters without periods.
• Avoid using initialisms as defined terms. Initialisms are abbreviations that don’t spell out a pronounceable word and thus must be pronounced letter by letter. For example, I recently read this is a brief: Defendant was charged with assault with a deadly weapon with intent to kill or inflict serious injury (“AWDWIKISI”). The brief-writer went on to use AWDWIKISI throughout the brief, which not only looked awkward but also sounded clumsy to my “mind’s ear” as I read the brief.
• Once you use a defined term, use it consistently throughout the document. Don’t be tempted to add variety; just embrace the clarity that repeating the defined term produces. It may seem boring to you (and perhaps even to your reader), but as one legal writing expert has put it, “It is better to be thought of as boring than confusing.”[2] Use the Find and Replace feature to verify that you’ve used your defined terms consistently.
• Don’t use a defined term for a party that you don’t mention again in your document.
• Don’t use hereinafter before defined terms. Avoid clunky references such as the following: Plaintiffs, Quality Electrical Installation and Repair and Thurmond Heating and Air (hereinafter referred to as “Plaintiffs”).
• Quotation marks around defined terms are optional; I advise my students not to use them because (1) they serve no purpose and (2) they add clutter.

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Laura Graham serves as Professor of Legal Writing and Director of Legal Analysis, Writing, and Research at Wake Forest University School of Law, where she has been teaching since 1999. She was the first recipient of the law school’s Graham Award for Excellence in Teaching Legal Research and Writing, which is named in her honor, and currently serves as immediate past president of the Association of Legal Writing Directors. Graham is a graduate of Wake Forest University and Wake Forest University School of Law.

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