Bridging the Gap — Spring 2024 Edition
TMI—TF: too much information—too fast

Choosing names

You’ve probably heard that what you call the parties or other people involved in a case can have subtle persuasive effect. You’re probably aware of and may try to follow Fed. R. App. P. 28(d), which recommends not using terms like appellant and appellee, and instead using either actual names or descriptive terms like “the employee,” “the injured person,” “the taxpayer,” “the ship,” or “the stevedore.” But Rule 28(d) still leaves us with several choices. For instance, if American Airlines is a party, you might refer to that party by its full name, by the shorthand American, or by a description which will vary depending on the type of case, such as the airlinethe employer, or the taxpayer. How do you choose? And should your choice be different depending on whether American Airlines is the client or the opposing party?

KristinGerdy1425582850-1-1-300x400For help in making these decisions, check out What's in a Name? The Implications of Strategic Naming Choices in Legal Advocacy, by Professor Kristin Gerdy Kyle of BYU Law. In her article, Professor Kyle explores the field of psycholinguistics and applies theories from that field to the choices of what to call the people and entities involved in a case.

To go straight to Professor Kyle’s recommendations based on her examination of the science, you can jump ahead to page 48. But if you want to know a little about the science behind her recommendations, read the whole thing. Following experts’ rules is fine, but it’s always better to know the reasons behind their rules so you’ll know when to make an exception.

I have one suggestion of my own: in attempting to depersonalize an opponent, don’t be obvious. If you call your client Mary Smith and your opponent the defendant, every reader will know what trick you’re trying to pull, and a trick doesn’t work when the audience is on to it. In The Winning Brief, Bryan Garner recommends “us[ing] real names for both parties and let[ting] your arguments do the talking.” That strategy is more effective because, as Garner says, “bad facts don’t stick to neutral labels ... the way they do to real names.” Bryan A. Garner, The Winning Brief 244 (3d ed. 2014).


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