Using Italics for Defined Terms?

A rogue comment by noted anarchist A. Wright Burke, M. Phil., in this post got commenters contemplating alternatives to using initial capitals to designate defined terms. In the process, Mark Anderson posted the following comment:

A German: English legal translator recently asked a similar question on IP Draughts. As German nouns are capitalised, they though this was not a useful way of indicating defined terms in German. I also note that European Commission Framework research contracts use italics, eg see https://www.google.com/url?q=f…

That prompted two thoughts:

First, I feel Germany’s pain, but I don’t think that should lead us to drop initial capitals for English-language contracts.

And second, I think that using italics is way more distracting than using initial capitals. Just look at the contract Mark linked to.

But when it comes to matters of typography, one likes what one is used to, so for a brief while I’m open to suggestions, until I close my mind again like a steel trap.

Posted in Defined Terms | 32 Comments

  • http://davidscrimshaw.blogspot.com dscrimshaw

    In the word processing software I use, it is a lot easier to change all the instances of a term to initial caps than it is to make them all be in italics (and vice versa).

  • AWrightBurkeMPhil

    1/ Better an anarchist than the Antichrist! (Lysdexics please ignore.)

    2/ Anyone capable of saying “mind like a steel trap” certainly does prefer what he’s used to.

    3/ Alternatives to nitcaps (initial capitals) should be (a) collected — there must be at least ten; (b) tested in some way, with full awareness that custom will make probably make them all seem odd; and (c) evaluated.

    As I type, it occurs to me that there’s likely some typographical society that has done all this work and reported it somewhere. How to formulate the appropriate Google query?

    4/ Absolutely not intending to point out a Middle Way (anarchists hate the Lunatic Center), can we make a case that defined terms need not always be nitcapped?

    5/ You already exempt “this agreement.” Maybe one test should be, “Is the defined term ever used other than as defined?” (E.g., if “Excluded Liabilities” is defined as the liabilities on schedule A, does the contract ever use the term “excluded liabilities” in any other sense? If not, why bother with nitcaps?

    6/ If the parties to the contract are a Commission and a Vendor, are there enough post-definition uses of “commission” and “vendor” in any other sense to warrant nitcaps?

    7/ If the defined terms are only occasionally used in some other sense, it might be more graceful to make the distinction on site (“in the event the vendor [under this agreement] has a dispute with a nonparty vendor”) instead of burdening the whole document with nitcaps.

    8/ Eliminating unnecessary nitcaps reduces the gap between ordinary prose and the stylized prose of contracts. Is this not a noble goal? Is this not one of the purposes of MSCD, to promote clear, modern contract language? Are not nitcaps a feature of Dysfunctional Traditional Contract Usage and as such to be scrutinized with gimlet eyes?

    9/ To end with a whimper, not a bang, here are a few off-the-top-of-the-head alternatives to nitcaps for defined terms. Not sure I like any of them, but let experts test them out, them and whatever else anyone cares to suggest. “Let a hundred flowers bloom.” (May an anarchist quote Mao?)

    a/ Italics
    b/ small caps
    c/ serifed font if the rest is unserifed, and vice versa (v. subtle)
    d/ “highlighting” (light grey background, for example)
    e/ leading or trailing superscripts (or both), such as a degree symbol or the numeral zero.

    • http://www.adamsdrafting.com/ Ken Adams

      This is the thanks I get for putting you on the whitelist! ;-)

      Actually, I didn’t exempt “this agreement.” It’s not a defined term.

      Regarding “steel trap,” I like to think I was employing the cliche to a different end. Oh well.

      • Ben King

        I think Ken’s point on “this agreement” not being a defined term is important, and really goes to the heart of AWrightBurkeMPhil’s fifth.

        I, like many others here, still use nitcaps. I don’t like it, but I like the other options less.

        Being aware of my dislike makes me scrutinize more carefully what gets “defined” in the first place. If I really don’t need to define the “Excluded Liabilities” as those liabilities for which the Buyer is not responsible under this agreement, then I simply don’t define them so. The flip side is that I make sure my definitions of those terms I just can’t avoid are robust.

        Nitcaps are disruptive. That’s their point. The goal is to make them disrupt as little as possible and the best way to do that is to ensure they meaningfully distinguish between the standard, undefined term and whatever it is we mean in the contract..

        • http://www.adamsdrafting.com/ Ken Adams

          Well said!

  • Chris Lemens

    Ken:

    I’ve read insurance policies where every use of a defined term is in bold type. It was very distracting, because I kept reading it as emphasis.

    If I just couldn’t use initial capitals for some reason, then I would use dotted underlining, on the theory that many websites use it to indicate that there is a popup box that will display if you click on that word. Here is a web page discussing one such use, for abbreviation and acronym tags in HTML: http://www.netmechanic.com/news/vol8/usability_no1.shtml. Thus, I surmise that at least some readers would not read dotted underlining as emphasis.

    I still prefer initial capitals.

    Chris

  • Francis Davey

    Well, I have thought about this quite a bit and have eventually settled on using italics in my contracts – at least for now – but I am still very much open to suggestions.

    One of the advantages of italics in the legal English lawyers in England are now being encouraged to use is that italic script has no other function. Emboldening (something I toyed with) is often used for subject headings and other forms of emphasis and initial capitals have a long history of being used to designate other things including proper nouns and the beginning of sentences.

    On the other hand since the Woolf reforms in 1999 young lawyers have (at least in more progressive firms) been strongly discouraged from using Latin or Norman French in legal work. The use of italic script to mark a foreign phrase (not always consistently see for example Ken Adams on force majeure) is no longer a pressing need because most of those terms won’t be used any more. If they have become truly English technical terms then the italics aren’t needed.

    The “no other use” criterion helps because it means that one can reliably search and find all such usages without error. While I agree that one should never rely on automated contract tools without also making sure of things by eye, it is clearly useful that is the case.

    Now, that is all objective, but the “look” is subjective. What looks good or distracting is very much in the eye of the beholder. There are cognitive effects which need study – as a dyslexic who reads word shapes capital letters are distracting in a way italic is not – I suspect that custom, practice and hence familiarity dominate.

    On this point my own aesthetic reaction to the Commission contract is “that looks natural” whereas to contracts with initial capitals is “yuk”. That – as far as I can tell – is the reaction of my clients too. But then I draft for a particular audience (tech. SME’s) where contracts will be read by non-lawyers as much as lawyers and their own prejudices are important. I am keenly aware that Ken’s manual is “drafting for other lawyers who will understand” and that he makes the point that drafting for other purposes is quite a different exercise.

    It is also possible that my exposure to contract drafting has given me less exposure to initial capitals than many other lawyers. My first year or two of work consisted of UK employment contracts (which tend to be drafted in standard English as far as possible and avoid that sort of convention as a rule) and English Long Leases (which used such archaic conventions that in many cases initial caps probably seemed like an exciting innovation along with mixed case).

    Anyway, that is why I am sticking with italics for now, but I am persuadable.

    • http://www.adamsdrafting.com/ Ken Adams

      It seems we’re equally ambivalent, just coming from different directions.

      I wouldn’t say that my recommendations are geared to lawyers. (Similarly, a few months ago I had to tell a contracts professor that my recommendations weren’t geared to nonlawyers.) Instead, my recommendations apply to business contracts, whether read by lawyers or nonlawyers, as opposed to consumer documents.

      • Francis Davey

        My apologies for my misunderstanding/mis-remembering. I see your point.

  • rcbjr2

    I use initial caps. I never use italics. When I first define the term I use bold, underline, and quotes. Then I just capitalize it when I use it in a sentence elsewhere in the agreement. I agree with dscrimshaw that it is much easier to use initial capitals. Also, depending on the font, italics is harder to read.

    • http://www.adamsdrafting.com/ Ken Adams

      I think the typography world would strongly recommend that you drop the underlining. With the bold, it’s overkill. And more generally, it’s a relic of typewriter days.

      • rcbjr2

        Yea, I know that underlining is a relic of typewriter days, but I think it helps the defined terms stand out (better than bold alone). I use underlining for Exhibits as well, but not bold. I have dropped many relics of typewriter days, including straight quotes and double-spaces after periods, but I still find underlining useful in certain situations (I learned to type on a relic of a typewriter back in 1972, so I recall the typewriter days quite well). So far, I haven’t found a compelling reason to change the practice, but I will change if I ever come across a compelling reason to change.

        • AWrightBurkeMPhil

          Why emphasize exhibits at all?

          • rcbjr2

            Why not? I just find it easier to spot them within a paragraph when I’m looking for them if they’re underlined. Same thing for Section references. If someone sends me a doc without the formatting, I don’t change it, but when I start with my template, that’s the formatting used.

          • http://www.adamsdrafting.com/ Ken Adams

            I don’t think readers benefit from highlighting exhibits or cross-references. And to be consistent with The Chicago Manual of Style’s guidelines, I recommend using in cross-references a small “s” in “section”.

          • Rich Belthoff

            Ah, but I benefit, and that’s all that matters. ;-)

  • stan benda

    My issue is that defined terms need to be immediately recognized, and much in a contract is capitalized beyond defined terms. So the question is what typographic devices enable the defined terms to be obvious to the reader, without disengaging or otherwise deflecting the reader? All capitals in the 1980s was way too much. Bold? Italics? Both? Different font?]

    • http://www.adamsdrafting.com/ Ken Adams

      I’ve never had much of a problem distinguishing defined terms from, for example, place names or names of entities.

      • Chris Lemens

        Ken:

        For me, the only functional problem with nitcaps is when a sentence begins wit a word ta is both (a) a one-word defined term and (b) an ordinary word used in the agreement. Often, you can avoid that just by re-writing the sentence.

        One of the problems I would have with using typeface to indicate that a word being used is the defined term is that this confuses semantic meaning with format. In HTML parlance, you would want to tag the use of the defined term, then apply a CSS style to it. The tag indicates semantic significance. But word processing programs are not so clever. So, I prefer nitcaps because a change in the word processing program used to read it is far less likely to strip out the nitcap than it is to strip out formatting like italics.

        Chris

      • stan benda

        I am happy for you! I don’t have a problem there either. But my readers might have to deal with dozens of scientific or related defined terms, many of which don’t exactly spring off the page and are sprinkled with other terms that demand a capital but are not defined terms. I ned to reader to distinguish between defined and not defined without flipping back and forth.

  • Vance_Koven

    Me, although I use nitcaps, if I needed an alternative I’d go with narcho-man’s 9(b), small caps. Distinctive, but not obtrusive.

    • http://www.adamsdrafting.com/ Ken Adams

      Should I feel ashamed that before today I’d never heard of “nitcaps”?

      • Vance_Koven

        Well, of course, neither had I, but as an old nitpicker I thought I should meet the extended family, and maybe imbibe a nitcap before retiring.

      • Ben King

        I think if we can get Garner on “nitcaps,” we’ll have made history here today.

  • Isaiah Cooper

    I looked at the contract linked in Mark Anderson’s comment above. After the TOC is a list of defined terms. After that the substantive sections of the agreement begin and the first couple of pages have a slew of terms in italics which are not defined in the list of definitions or defined where they are first used or used with the parenthetical (as defined below) or (as defined in Section X, below). I really hate the use of italics for this purpose and I think this agreement is flawed by the lack of clear definitions.

    Further, rcbjr2 commented that “When I first define the term I use bold, underline, and quotes. Then I just capitalize it when I use it in a sentence elsewhere in the agreement.” I think this will create problems. I believe that to avoid confusion however you set up a term or phrase when you define it is how it should be use in the agreement. So if your agreement includes the following definition: “Included Assets are defined as the assets list in Schedule A attached hereto,” then when you next use the phrase for its defined meaning, it should appear as Included Assets.

    However, if you definition were to read as follows: “”Included Assets” are defined as the assets list in Schedule A attached hereto,” then I believe that when you next use the phrase for its defined meaning, it should appear as “Included Assets.”

    • http://www.adamsdrafting.com/ Ken Adams

      MSCD has recommendations for all these issues, and they differ from what you propose, in ways that it would take way too long to explain here. (I know that’s kind of annoying as a response!)

  • Francis Davey

    One other point that has relevance in some situations is how well the convention used survives the various forms of mangling that a contract may undergo. Only last week I found that a contract that I had drafted had somehow at the point of being printed out and signed (in my absence) lost all its numbering.

    I find clients will quite happily take things I have drafted and reformat them in various ways, including uploading them to google docs (some enterprises use it for internally discussing documents) or transform it in other ways.

    Many things suffer. Italics are pretty robust, but initial caps are even less likely to be mangled I accept. Something cleverer is more risky.

    For example a contract drafted in (say) html or an intelligent markup language (sometimes this is what is wanted) could have proper markup for internal references to defined terms, with mouseover text for ease of reading.

    But that sort of thing is much more fragile. Unless you have a reasonable amount of control over what happens to your text it is probably safest to rely on something that can take considerable vandalism. At least that is my experience.

    • http://www.adamsdrafting.com/ Ken Adams

      Good point.

  • Ben King

    I have a slightly different question: what do you do when you have a term that has an accepted but somewhat variable meaning in the industry–and therefore does not need to be defined–but you want to be sure both parties understand the specific “flavor” you intend?

    Case in point – I’m drafting a paragraph to prohibit the practice of “churning,” which happens when a sales agent sells to the company’s/employer’s existing customers in order to inflate the sales agent’s commissions. My first impulse was to Define the term and stick a definition in the definitions section, but I don’t think it merits the distraction of yet another Defined Term.

    On the other hand, placing the definition on site–with or without nitcaps–is unwieldy and probably equally distracting.

    Or am I just overthinking this?

    • AWrightBurkeMPhil

      If the meaning is “somewhat variable in the industry,” it’s probably best to define the term to specify the flavor you mean.

      How about this proposed rule: “Don’t nitcap defined terms any more than necessary to avoid confusion”?

      So if you don’t refer in the contract to any commissions except the Securities and Exchange Commission, then after first reference to that commission, put a parenthetical short name like (commission) or (“commission”) and use the short name with lower case initial letters thereafter (“nitlows”?).

      Even if there are multiple commissions, you could still nitlow the short names, as in the following example:

      Beautiful City Planning Commission (“planning commission”) and Big Area Zoning Commission (“zoning commission”).

      Not claiming originality: Connecticut state courts do it (“Red Book style”), and it has trained me to prefer “downstyle” in definitions.

      • Ben King

        As we established above, nitcaps should distract just enough to add to the understanding of the contract and no more.

        In the case of the solitary SEC, I’d leave the Commission capitalized because it’s a proper noun, but I wouldn’t feel the need to make it a defined term (a point where I disagree with the MSCD). If there’s only one commission in the contract and I’ve already given the full name of the Securities and Exchange Commission, adding “(in this agreement, the ‘Commission’)” strikes me as just the sort of arrant pedantry up with which we should not put.

        But I would follow your recommendation for the “planning commission” in the case you describe. .

        • Mark Anderson

          We are arrant knaves, all; believe none of us.