Go Easy on the Capitalization

A few readers let me know about a Minnesota bankruptcy court judge who issued a set of guidelines for lawyers submitting proposed orders to him. Included was a request that lawyers limit their use of capitalization. For more information, see this post on Lawyerist.com.

My first instinct was to assign this to the wrong side of the litigation-transactional divide. But drafting is subject to general principles of good legal writing, one of which is that you’d be advised to restrain yourself from succumbing to the lawyer urge to give an initial capital to anything that’s important. Any kind of writing benefits if the writer follows established guidelines, and when it comes to capitalization, for purposes of writers located in North America the authority to follow is The Chicago Manual of Style. It advocates a “down” style—”the parsimonious use of capitals.”

In that spirit, note what isn’t capitalized in the following:

  • issued by the secretary of state of the state of Delaware
  • the bank account specified in schedule 2(e)
  • sale of units of Product under this agreement
  • signed by the president of Acme Technologies, Inc.
  • as defined in section 6(c) of the merger agreement between Acme, Widgetco Acquisition, Inc., and Widgetco Technologies, Inc.

Those of you who are outside of North America, what authority do you consult on matters such as capitalization?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

15 thoughts on “Go Easy on the Capitalization”

  1. I find it typically American (US) to overuse capitals in texts, whether in contracts or ordinary texts. I believe capitalisation adds nothing but to the shrieking character of a message.

    Btw, you did not illustrate the abundant use of capitalisation in headers.


  2. Willem: I was thinking about overuse of initial capitals, but yes, needless use of all capitals is a particularly U.S. habit. It makes text a chore to read and is not required in order to make text “conspicuous” under the Uniform Commercial Code. See MSCD 15.37.

  3. Apologies Ken, I was referring to initial caps (where all caps is even worse).

    As regards headers, I would *#!@- headers such as: “Choosing Between Discretion and Prohibition for an Action Subject to Consent”.


  4. Willem: In English, unlike other European languages, it’s standard to use initial capitals in headings. I suspect it’s just a matter of what you’re used to. Ken

  5. Ken, I am not sure there is a standard text that everyone goes to, for UK English.

    Perhaps the closest to a standard text is The Complete Plain Words, originally by Sir Ernest Gowers, and originally published by Her Majesty’s Stationery Officer, later by Penguin. My copy of the 1987 edition (from a quick look on Amazon it seems the latest edition is from 2004) devotes half a page to capitals, including the key phrase:

    “The only difficulty is with words that are sometimes written with capitals and sometimes not. Here there can be no general rule; everyone must do what he thinks most fitting.” Gowers goes on to recommend using the capital for the particular and a small letter for the general. He also recommends being consistent.

    My impression is that people in the UK tend to follow a general approach of what other people are doing, rather than any formal bible of style. Journalists on the [London] Times newspaper are expected to follow their paper’s style guide, and this probably filters down into the practice of readers of that newspaper.

    In your examples above, I would probably have capitalised the official titles, eg Secretary of State.

  6. Ken

    When one looks at old legal documents, one sees an abundance of capitalised terms, (e.g. “Conveyance”, “Agreement”) even though those terms have not been created as defined terms in the modern way. The old practice of capitalising perceived important words still carries through into some UK lawyers’ written correspondence, so that Statement of Claim, Statutory Declaration, Grant of Probate etc. might all feature in the body of solicitors’ letters, in a capitalised state, for no apparent reason.

    Modern drafting of legal documents encourages the application of ordinary rules of English grammar, so that unless a term has been formally defined in the agreement with capitals, or is at the start of a sentence, or is a proper noun, or is a term which is known in its capitalised state (e.g. High Court, House of Commons) the lower case should be used. But we don’t have a legal drafting bible in the UK, and firms’ practices can differ widely. There’s a market for you…


    PS Sorry about the s in capitalisation.

  7. In the UK, Hart's Rules, or Hart's New Rules, from the OUP, is one common reference. It does have OUP idiosyncrasies, such as -ize, which I like, and the serial comma, which I also like, but many UK people reject them. We usually capitalize the important words in headers, in the US style, *only* in book titles, not in the titles of chapters and articles. So I don't think you can say there is one style for English. Just look at the headings at http://www.guardian.co.uk – that is standard UK capitalization of headings.
    I would capitalize Secretary of State as a title or the reference to the current one. If it were generic – 'there have been X secretaries of state in the last 100 years' – then not capitalized.

    • Margaret: I'm not sure I see a principled distinction between saying "The school is inviting the Secretary of State," with initial capitals, and "Over the past 200 years the school has invited every secretary of state," no initial capitals.

      And more generally, when I'm dealing with general usage, instead of saying what I'd do, I prefer to cite an authoritative reference work, and The Chicago Manual of Style serves that function for me. It would be for the best if, instead of making our own judgments in these matters, we were to follow a reliable set of guidelines.


      • Yes, I take your point, Ken. In fact Hart's Rules and the Chicago Manual agree on this one, e.g. the secretary of state, but Secretary of State George C. MarshallStill, I think there is more than one set of guidelines so we can't all follow the same. For instance, it looks to me as if the pope is not capitalized in the Chicago Manual, but is in Hart's.

  8. Margaret: I'm not suggesting that one style guide would work for the various forms of English worldwide. But those of us in the U.S. and, perhaps, Canada ought to be able to make do with The Chicago Manual of Style. Ken

  9. As a technical writer who contracts at IT companies, I’m faced with documents that virtually capitalize every noun! It seems to relate to the buzz word terms used in “company-speak”. For example, if there is a quality control checklist that appears somewhere on a website capitalized, whether the init capped reference is to a doc of that name, or the concept of having a named checklist, every time the phrase is used, it’s init capped. So there is no distinction between that formally named document on the website and the concept of having a quality control checklist. This is problematic as it tends to lead to the use of init caps on any noun relating to some function of the software. Pretty soon, it’s hard to find a noun that’s not init capped. My view is that the too frequent use of them leads to confusion and renders any use of them meaningless. (But I am frequently voted down…)

  10. I would really like to remove the caps to make a sentence easy to read, and much more approachable, but I am reluctant to do this if it will change the legal meaning of the sentence. How about this awful sentence: “Notwithstanding what is contained in Preceding clause above, the risk in and to the Equipment shall be passed on to You on delivery, You shall be liable for loss of and damage to the Equipment and the Bank shall apply setoff/net off or debit Your Nominated Bank Account with the full replacement value of any Equipment in the case of loss and/or damage whilst the Equipment is in your possession.”


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.