LawProse Lesson #183: What’s wrong with initial-caps point headings?

LawProse Lesson #183  What’s wrong with initial-caps point headings in briefs?      Two things. First, most lawyers don’t know how to type text in initial caps properly. But second—and far more important—proper point headings must capsulize points. They’re complete sentences, not mere phrases. So they’re not like titles such as Gone with the Wind or Around the World in Eighty Days. Or tag lines such as Statement of Facts or Table of Cases. No: they’re legal and factual propositions. And if you set those complete propositions in initial-caps text, the reader’s eye keeps stopping and thinking it must be near the end of a topical phrase (that’s what initial-caps text signals). Consider: Even If the Temporary Nature of the Flooding Here Does Not Defeat Jensen’s Claim, Other Factors Establish That the United States Did Not Take Jensen’s Property. But lawyers make it worse by capping every single word, in violation of every style manual ever published in the history of the English-speaking world: Even If The Temporary Nature Of The Flooding Here Does Not Defeat Jensen’s Claim, Other Factors Establish That The United States Did Not Take Jensen’s Property. So how do pros do it—bona fide brief-writing pros? They don’t underline. They don’t use all-caps. Nor initial-caps. They set out their point headings as boldface sentences in the body of the brief (lightface in the table of contents): Even if the temporary nature of the flooding here does not defeat Jensen’s claim, other factors establish that the United States did not take Jensen’s property. That’s 27 words—in what is known as “down style.” Good point headings typically run 15 to 35 words: they’re meaty, single-spaced propositions (unless benighted court rules require otherwise). They’re meant to be read. And they are read if you do them the right way. Do it the ham-fisted way with all those caps, and your readers will probably skip over what you’re trying to make sink in. For other guidance on point headings, see The Winning Brief 403–22, 660–73 (3d ed. 2014). There you’ll find more than a dozen examples of killer point headings from the United States Solicitor General’s Office. That office has created the gold standard for point headings. Few other lawyers even approach that standard. But there’s no reason you can’t be one of them. Further reading: Legal Writing in Plain English 150–51 (2d ed. 2013). The Winning Brief 403–22, 660–73 (3d ed. 2014). Frederick Bernays Wiener, Briefing and Arguing Federal Appeals 67 (rev. ed. 1967).