In legal writing, consistency matters
Professor Charles Alan Wright, the expert in constitutional law and federal courts, once said: “Most law students and lawyers do not understand the basic principles of English usage.” That was partly what prompted me to write the first edition of A Dictionary of Modern Legal Usage in 1987.
You might wonder whether he really meant principles in that statement. The principles of English usage involve things such as the idea that you should stick to consistent conventions within a piece of writing. For example, if you spell the word marijuana at first, you shouldn’t change the spelling with marihuana later in the piece. Another principle is to use the predominant American English spellings as opposed to secondary variants. That issue wasn’t decided for marijuana until the late 1970s, before which time marihuana was a close competitor.
Even settling on that spelling, though, doesn’t solve all problems. A couple of decades ago, U.S. Supreme Court Justice John Paul Stevens wrote an opinion that adopted the marijuana spelling, but in several passages he had to refer to the Marihuana Tax Act. He also quoted from various sources that used the “h” spelling. A savvy reader would understand, but only after pausing to consider the discrepancy.
This slightly jarring effect on careful readers, of course, makes the reason for consistent usage self-evident. You want your readers focusing on the content of what you say, not on curiosities of spelling or inconsistencies in your own style.
That can happen with all kinds of words. Many federal statutes use the spelling subpena despite the longtime predominance of subpoena. That’s because for most of the 20th century, the GPO Style Manual (issued by the Government Publishing Office) long prescribed subpena as the spelling. But all the 21st-century versions of the manual, fortunately, give preference to the usual spelling: subpoena.
The attorney fees issue
Another perennial problem is attorney’s fees vs. attorneys’ fees vs. attorney fees. (The form attorneys fees is an abomination not in contention.) The Civil Rights Attorney’s Fee Awards Act, 42 USC § 1988, uses the singular. For some legal stylists, that answers the issue conclusively: Follow the statute. Others, though, are more literal-minded: They say that if more than one attorney is involved, it should obviously be attorneys’ fees in that particular case. Whichever form you choose, you’d want to be consistent within a piece of writing.
But if you choose the plural possessive (attorneys’ fees), you might get caught in Justice Stevens’ marijuana/marihuana bind if you must also refer to the Attorney’s Fee Act.
Personally, I’ve come to prefer the simple form attorney fees, which obviates the apostrophe problem. I first recommended this form in The Redbook: A Manual on Legal Style (5th ed. 2023). Attorney fees became the slightly predominant form in English-language publications during the first decade of this century. (The three forms are about equally common today.) Attorney fees has another advantage: It’s more comfortably hyphenated if you’re referring to an attorney-fee dispute, an attorney-fee schedule, etc.
Nobody wants to write attorney’s-fee schedule or attorneys’-fee schedule. Yet this is one of the principles of English usage: Phrasal adjectives are to be hyphenated. The lawyer who doesn’t understand this principle is likely to write attorney’s fee schedule or attorneys’ fee schedule without the hyphen. That’s the kind of thing Professor Wright was referring to when he said lawyers don’t understand the principles of English usage.
Other hyphens cause problems. In American English (as opposed to British English), the standard form for most prefixed terms is solidified. Hence coworker, multicampus, nonunanimous, pretrial, postverdict, recodify and semimonthly. There is a handy list under each prefix in Merriam-Webster’s Collegiate Dictionary. You need merely look.
There are exceptions, naturally. Four, to be precise: Use a hyphen if (1) the solid form might cause a miscue in reading (anti-inflammatory); (2) the main term is a proper name (non-United States citizen); (3) the prefix is part of a noun phrase used as a phrasal adjective (non-soda-drinking guests); and (4) the solid form suggests an entirely different word (her pre-judicial career).
As in so many things, there’s still room for differences of opinion. In the 2021 case of Edwards v. Vannoy, Justice Brett Kavanaugh’s majority opinion consistently referred to non-unanimous jury verdicts. The following year, Justice Neil Gorsuch issued an opinion dissenting from the denial of certiorari in Khorrami v. Arizona. His spelling? Nonunanimous verdict.
A court divided
Curiously, the court is nonunanimous about how to spell non(-)unanimous.
Nor is there unanimity on the court about how to make the possessive of Congress. Some justices follow The Chicago Manual of Style and write Congress’s (Chief Justice John Roberts and Justices Elena Kagan, Sonia Sotomayor, Kavanaugh and Ketanji Brown Jackson). Others follow the GPO Style Manual and write Congress’ (Justices Clarence Thomas, Samuel Alito, Gorsuch and Amy Coney Barrett). That’s right. It’s a 5-4 split. But there are two swing votes on this momentous issue: Thomas and Sotomayor have both issued opinions that, although consistent within themselves, reflected either convention.
On points of capitalization, the Supreme Court is virtually unanimous in following its house style. Have you noticed that the court consistently refers to a district court (a general reference) but the District Court (a specific reference). It’s a subtle thing. Likewise, the court capitalizes the titles of federal officers and lowercases those of state officers. Curious.
One excellent practice of the court contradicts a particularly annoying practice that lawyers often follow—using a parenthetical shorthand even when it’s not remotely necessary. There’s no reason to write Petitioner Herman Gundy (“Gundy”) or, worse, Petitioner Herman Gundy (hereinafter “Gundy”). He is, after all, the only Gundy within miles of the case. There’s typically no justification for the parenthetical that so many lawyers pedantically insert. It’s as if they assume their readers haven’t the slightest intelligence.
The Supreme Court generally rejects this knee-jerk habit. That’s why, for example, Justice Kagan wrote an opinion in Gundy v. United States (2019) in which Petitioner Herman Gundy is introduced, and then Gundy is referred to after that, just as in good journalism. Nobody thinks some other unannounced Gundy has suddenly popped into the opinion.
Only when things get complicated can parenthetically announced labels serve a real purpose. Did you see, for example, what I did with GPO Style Manual earlier in this piece? Many readers wouldn’t otherwise know what the title refers to.
Why should we care about this stuff? Because the law is essentially a literary profession. And professional writers over the years have worked out hundreds of sensible conventions that enhance both clarity and credibility. Those are the principles—conventions, really—that Wright said most lawyers don’t understand. He was really suggesting an opportunity that each one of us has to stand out positively from the crowd.
This story was originally published in the June-July 2025 issue of the ABA Journal under the headline: “Pesky Problems of Legal Style: In legal writing, consistency matters.”
Bryan A. Garner is the president of LawProse Inc., chief editor of Black's Law Dictionary (12th ed. 2024) and author of Garner's Dictionary of Legal Usage (3d ed. 2011) and The Redbook: A Manual of Legal Style (5th ed. 2023).
This column reflects the opinions of the authors and not necessarily the views of the ABA Journal—or the American Bar Association.7
