Joan Heminway, professor at the University of Tennessee College of Law, sent the following inquiry to me and one of her colleagues:
In commenting on student work, I have noticed over the years a decrease in student use of quotation marks around defined terms, especially when defined in inside parentheses. I note that while investment bankers, e.g., do not typically use the quotation marks, lawyers do. I think it’s clearer to do so, since some terms may otherwise be mistaken for parenthetical text and I believe in consistency.
Have either of you guys written about this? Do you have a view? Do you know of any cases that have cited to any confusion in an actual contract around this? Let me know if you have any thoughts that are relevant.
Sure, I have a view: MSCD 5.18 says “Place in quotation marks and emphasize in bold any defined term linked to an autonomous definition.” And as regards integrated definitions, MSCD 5.37 says “place in quotation marks and state in bold any defined term that’s being defined in a defined-term parenthetical.”
(By way of a reminder, an autonomous definition is linked to its defined term by a verb, as in “IRS” means the Internal Revenue Service, whereas in the case of an integrated definition the defined term is created in parentheses placed at the end of the definition, as in Since January 1, 2011, Dynaco has filed with the SEC … (those documents, the “Dynaco SEC Documents“).)
But I’m happy that Joan provided me with an excuse to reassess my view. To do that, let’s have a look at conventions used in general writing.
Autonomous Definitions
The closest analogy in general writing to autonomous definitions is a glossary. Here’s what The Chicago Manual of Style 2.28 has to say regarding how to create an entry in a glossary:
Start each entry on a new line, flush left, capitalized only if the term is capitalized in the text. … Place a period or colon (or less desirably an em dash) after the term and begin the definition with a capital letter, as if it were a new sentence.
The CMS recommendation differs from MSCD’s recommendations in two respects—it features neither quotation marks nor a definitional verb. Using definitional verbs makes autonomous definitions more versatile than a glossary: The punctuation in a glossary could only be a substitute for means, whereas autonomous definitions can make use of alternative definitional verbs, including refers to. (See MSCD 5.22.) So I’m in favor of using definitional verbs.
And if you use a definitional verb, putting the defined term in bold and within quotation marks makes sense, in that the quotation marks are a substitute for the distancing afforded by the punctuation used in a glossary.
Integrated Definitions
The CMS equivalent to integrated definitions is abbreviations. Here’s what CMS 15.2 has to say:
[Other abbreviations], though in common use (HMO, UPS, AT&T), are normally spelled out at first occurrence—at least in formal text—as a courtesy to those readers who might not easily recognize them. Less familiar ones, however, should be used only if they occur, say, five times or more within an article or chapter, and the terms must be spelled out on their first occurrence. (The abbreviation usually follows immediately, in parentheses … .)
Here’s the first example CMS provides:
Among recent recommendations of the Federal Aviation Administration (FAA) are …
So CMS’s recommendation differs from MSCD’s in that the abbreviation isn’t in quotations and isn’t in bold. (Also, the parentheses don’t include the definite article the; by contrast, see MSCD 5.36.) Presumably that’s why Joan’s students increasingly tend not to use quotation marks with integrated definitions.
I nevertheless prefer MSCD’s approach. When I’m creating a defined term, I want to give the same visual signifiers, regardless of how I’m creating the defined term. Using bold and quotation marks makes sense for autonomous definitions, so I’m going to stick with them for purposes of integrated definitions, conventions in general writing be damned!
And using quotation marks not only makes sense, it’s standard among U.S. practitioners. (If different conventions are used in other jurisdictions, please let me know.)
Quote marks are standard among UK practitioners as well (bold or otherwise). I am in favour largely for the reason Joan Heminway gives, which is that “some terms may otherwise be mistaken for parenthetical text”.
In general prose it isn’t really a problem if the line between definition and explanation isn’t crystal clear, but it is very important in legal drafting. Standard English should be generally used in writing contract prose, but I wouldn’t see the need to pay much attention to the CMS on a more technical point like this.
I just reviewed a prospectus for a stock listing in Bremuda where I went through editing the defined terms (she had the term bold and in parenthesis). Local counsel stated :
“just so you know, we don’t use “the” in front of our definitions – so I won’t make those changes. It is a bit of an antiquated way of defining terms which we have moved away from (as have many firms internationally, and most of the large firms) We try to keep as modern as possible with our document formatting.”
I was a little irritated but willing to learn. Thoughts
Your local counsel’s preference is consistent with that expressed in the Chicago Manual of Style.
I suggest that contracts are a little different. It’s unlikely that in a prospectus or other piece of expository prose someone would use a defined term like “Seller” without the definite article “the,” but that’s routine in contracts. So if in a contract you elect to use “the” with a common-noun defined term, I think there’s some value to signalling as much (for the benefit of anyone who’ll be negotiating or revising the contract) by including “the” in the parentheses.
When quoting any contract language that includes parenthetical defined terms that are bold and quoted, do I use single quote marks inside the parenthetical?