Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

The next time you’re feeling tooled around, consider Robert Pelkey’s plight.

There he was, sick in bed in his New Hampshire apartment, when a snowstorm hit in February 2007. Unbeknownst to Pelkey, his landlord had Dan’s City Used Cars tow Pelkey’s 2004 Honda Civic from the parking lot so that the snow could be cleared. The ailing Pelkey was hospitalized soon thereafter, during which his left foot was amputated and he suffered a heart attack. He was discharged two months later only to discover that Dan’s City was planning to sell his car at a public auction to pay the towing and storage fee.

Two days before the auction, Pelkey’s lawyer told Dan’s City that Pelkey wanted to pay the fees and reclaim his car. Dan’s City nonetheless went ahead with the auction, and ultimately traded Pelkey’s Civic to a third party.

Pelkey got nothing for his car. So he sued Dan’s City and asserted various state-law claims for damages based on violations of a New Hampshire statute regulating the removal, storage, and disposal of abandoned cars. And, in due course, his case wound up in the United States Supreme Court on a preemption issue under the Federal Aviation Administration Authorization Act. Despite its aviation-flavored name, this statute’s preemption provision also applies to the trucking industry – and to towing under certain circumstances.

Justice Ginsburg’ opinion for the unanimous court in Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769 (2013), holds that the preemption provision does not apply to Pelkey’s state-law claims arising from the towing company’s disposal of his car because this dispute does not involve “transportation of property” under the federal statute. Pelkey faces no preemption hurdle in his effort to extract compensation from Dan’s City.

I highlight this opinion not to celebrate the determined Mr. Pelkey’s victory over the unloved towing company, but to consider a frequently used writing technique that appears at the beginning of Dan’s City Used Cars, Inc. This technique is the definition of parties and other terms by shorthand references in parentheticals.

Many briefs and opinions over-define. Every participant in the litigation gets a personalized parenthetical – even if it merely informs you that plaintiff James Smith will be referred to hereinafter as (“Smith”) and defendant Harry Jones will be referred to hereinafter as (“Jones”). This approach is all clutter and no help. It reflects the same paint-by-numbers approach to legal drafting that is exemplified by annoying references to “the instant case” and the gratuitous inclusion of inter alia.

The problem becomes acute when the drafter defines multiple entities or documents with acronyms to create a secret code decipherable only by the litigants, their lawyers, and the National Security Agency (hereinafter referred to as the “NSA”). It is not uncommon to see something along these lines in a brief or opinion:
The instant case arose from a business relationship between Acme Global Insurance (“AGI”) and Assurance Network of Texas (“ANT”). The purpose of this relationship was, inter alia, to negotiate a Joint Underwriting Memorandum (“JUM”) to govern the parties’ actions in developing and marketing Big Loss Experience (“BLE”) coverage to customers. AGI, ANT and others signed the JUM for BLE.
You get the idea.

To be sure, defined terms can aid comprehension when they are used thoughtfully and sparingly. Dan’s City Used Cars, Inc. follows this approach by using only two parenthetical defined terms at the opinion’s beginning: The petitioner is defined as “Dan’s City” and the federal statute is defined as the “FAAAA.” I can’t really quarrel with either writing choice. It would be clumsy to refer to the petitioner by its full name throughout the opinion. And there probably is no non-clumsy way to abbreviate a federal statute that has four words beginning with “A” in its name. Mercifully, there is only one “Pelkey” in the case and Justice Ginsburg has enough confidence in her readers to assume they will remember he owned the Civic.

In deciding when and how to define terms at the outset of your document, bear in mind the example of Mr. Pelkey, Dan’s City, and the FAAAA. When it comes to definitions and acronyms, less really is more.