If you’re defining a term, how do you signal throughout the rest of the document that it has been defined? If you’re like 99.9% of American lawyers, you simply capitalize it. A real-estate formbook has a provision that reads: “‘Substitution Space’ means another space in the Shopping Mall having a similar gross leasable area as the Premises.” From that sentence, you’d know that “Substitution Space” is being defined then and there, and that “Shopping Mall” and “Premises” have been defined earlier in the document.
A lawyer would know, at any rate. Ordinary readers are likely to be puzzled if not altogether put off.
Other conventions are possible, and some lawyers—a small percentage—prefer them.
One possibility is to italicize all defined terms without capitalizing: “Substitution space means another space in the shopping mall having a similar gross leasable area as the premises.” If you think that’s distracting, it’s really no more distracting to most readers than the initial capitals. They both disrupt the reading.
Even more visually bothersome is using boldface: “Substitution space means another space in the shopping mall having a similar gross leasable area as the premises.” That’s a kind of pockmarked text that becomes a major annoyance to any sane reader. Please reject this idea.
Some drafters advocate the use of asterisks before defined terms: “*Substitution space means another space in the *shopping mall having a similar gross leasable area as the *premises.” There’s a practical problem there: how do you know what’s been defined? Is it “substitution” and “shopping,” or “substitution space” and “shopping mall”? And for people accustomed to reading linguistic texts, the asterisks seem to signal something entirely different: to linguists, they denote a departure from Standard English. That’s certainly a perplexing. In any event, the ordinary reader may well wonder why there’s no footnote.
Others have suggested capitals: “SUBSTITUTION SPACE means another space in the SHOPPING MALL having a similar gross leasable area as the PREMISES.” I’m not predicting shouts of enthusiasm for this method.
Still another possible convention is to leave defined terms unmarked: “Substitution space means another space in the shopping mall having a similar gross leasable area as the premises.” After all, there’s only one mall mentioned in the document and only one place called the “premises.” Yet the problem here is not knowing later what’s a defined term and what isn’t, especially if the defined terms appear at the end. This convention works well primarily in consumer contracts that have just a few definitions—perhaps four up front (such as you and we—the parties—and a couple of others). In any event, we and you inevitably remain unmarked in consumer contracts.
The challenge of marking defined terms certainly exists. The easiest thing to do is go with the prevalent custom: initial caps. But it’s always good to think about what we do and why we do it. Never forget how unappealing it is to have out-of-control capitalization: you might well be defining all sorts of terms that don’t need defining.
We’re eager to hear what you—You—*you—YOU—you—think. Perhaps you have another method of marking. Write to us.
One last thing: did it occur to you that the sentence we’ve been reading isn’t idiomatic? Similar as? “You’re similar as me?” No. It should be similar to. In Standard English, we’d say: “Substitution space means another space in the shopping mall having a gross leasable area similar to that of the premises.” Two changes: similar to and that of. With the second change, we’re comparing one gross leasable area to another gross leasable area. We’ve made the phrasing more logical. That’s not a bad thing, even in a contract.