Rules are Rules for a Reason, Part 8, Orders: §§ IV and V

Section IV of VIII, Typography

  • Typography. Read Matthew Butterick’s Typography for Lawyers (3d ed.) and follow his instructions regarding tab spacing, underlining, italics, spacing after a punctuation mark, all caps, and other typography issues. Your orders and documents will look and read much better.
  • Underlining. Italics are properly used for many things such as book titles, case names, and foreign terms or words. Because typewriters, particularly before the IBM Selectric, could not type Italics, the practice of underlining to indicate Italics was developed. In the age of computers and printers with multiple fonts, it is no longer necessary to underline to indicate Italics; just use the Italics. For example, Sexton v. Sexton rather than Sexton v. Sexton and guardian ad litem rather than guardian ad litem. Ignore rules suggesting underlining; those rules were written in the age of typewriters, not computers.


Section V of VIII, Grammar

Grammar and Spelling. It should not be necessary to state that lawyers should write orders using proper grammar and that each word should be spelled correctly. Make it a practice to use the spell checker and grammar checker with your word processor. Have someone proofread your proposed order. Develop good form paragraphs you use to “cut and paste,” confident that they are legally and grammatically correct with each word spelled properly, so you are not required "to reinvent the wheel." Better yet, use a document automation system such as Hot Docs or South Carolina Divorce Forms.

  • Use Plain English. The most important audience for orders is the litigants, most of whom do not have a law school education. Because it will control their lives, litigants must understand the order. Readers understand orders best when the sentences use active voice with an average word length of five letters or less and an average sentence length of twenty words or less.
  • Excessive Capitalization. Lawyers Seem To Want To Capitalize Every Word In A Document. This is unnecessary and incorrect. Frequent examples include Court rather than court, Defendant rather than defendant, and Complaint rather than complaint. Noun phrases such as motion to compel or rule to show cause should only be capitalized when referring to a particular document in the case. Capitalization of a document title in the case is proper but noun phrases should use lower case. Examples: Rule 37, SCRCP, provides for the motion to compel discovery responses (noun phrase). The plaintiff served the Motion to Compel Discovery Responses on May 25, 2021 (particular document title).
  • Avoid Latin. Sometime you must use Latin for technical terms or terms of art, such as guardian ad litem or res judicata. For others, we can use “absolute divorce” rather than divorce a vinculo matrimonii or “in other words” for “inter alia.”
  • Use of “Pleadings”. The term “pleadings” does not refer to any document filed with the court; it refers to the complaint, the answer or answer and counterclaim, and the reply to counterclaim. Before the adoption of the South Carolina Rules of Civil Procedure on July 1, 1985, it also referred to a demurrer.
  • The Honorable. The Honorable is a courtesy title in England given to the younger children of earls and the children of viscounts and barons. In the United States, it is used as a title for various classes of officials, including judges. “One never uses the The Honorable when saying or writing one’s own name. So – never as the host on an invitation, never when signing one’s name, and never when introducing yourself.” The Protocol School of Washington. The order may refer to judges other than the judge signing the order as The Honorable John Marshall but the judge signing the order should never refer to himself or herself as “the Honorable” or “The Honorable Court.” To include the title is to suggest that the judge signing the order is tasteless and tacky. The late Judge Berry L. Mobley is an example of a family court judge who always struck the words “The Honorable” when it referred to him…


I will post Sections VI Redundancy, VII Submission, and VIII Conclusion, on Monday,  June 14, 2021.