Should We Still Avoid Contractions in Formal Legal Writing?

As summer begins in full, I have been reflecting on . . . grading 1L appellate briefs.  I know, this is a sickness.  However, this spring, I marked more papers with incredibly odd contraction use than in past years, so I am pondering “didn’t,” wasn’t,” and more as I spend the summer working on my teaching materials for fall.

Like many, I teach new law students to move past any text-style informal writing with emojis, missing capitalization, and the like.  I assign reading on apostrophes and Oxford commas, and we even work on punctuation in class.  By spring, most of my students are much more precise and careful in their writing, with one large exception:  contractions. 

Given the increase in contraction use by some commentators, like Bryan Garner, and courts too, I expect to see occasional contraction use by my students.  See generally Bryan Garner, The Elements of Legal Style 81-82 (Oxford Press 2001); https://www.plainlanguage.gov/guidelines/conversational/use-contractions/ (explaining why Garner and some others believe contractions can make writing more accessible and understandable).  Many authorities advocating for the use of contractions also advise caution, however.  As one commentator explained:  “To use an example from MLA, if you’re writing to a judge requesting leniency in sentencing, use of contractions could seem dismissive. Like everything in writing, audience and context are key.”  Chris R., When Are Contractions Too Informal?,

https://proofreadingpal.com/proofreading-pulse/writing-guides/when-should-i-use-contractions/(Sept. 1, 2017).

Following this context approach, I suggest my students be direct and clear, but respectful, in their formal writing and avoid contractions in court filings.  Then, we discuss using the “house style” of their future firms, offices, or supervisors for guidance on contractions in their inter-office writing.  I quote Chelsea Lee, who noted:  “Asking whether you should use contractions in formal academic writing is sort of like asking whether you should wear a bathing suit to a party—it depends on the type of party. Is it a pool party or a fancy dinner?”  Chelsea Lee, Contractions in Formal Writing: What’s Allowed, What’s Not, https://blog.apastyle.org/apastyle/2015/12/contractions-in-formal-writing-whats-allowed-whats-not.html (Dec. 10, 2015). 

This year, however, some of my students included so many contractions in their briefs, despite my PowerPoint slides and rubric expressly banning contractions in briefs, that the contractions interfered with readability.  These students also wrote briefs right at the word limit, and the briefs often read as if the writers made seemingly last-minute decisions to save words by inserting contractions.  

Of course, I deducted writing style credit from these briefs based on the lack of readability caused by using so many contractions.  Nonetheless, I would like to give a greater incentive to follow my contraction suggestions more closely next year.  I want to convince students that there is no advantage to using many contractions instead of carefully editing.  Accordingly, for students’ formal appellate brief assignment, I might count most contractions as two words for word limit purposes.

On the other hand, as more judges use contractions in their published opinions, perhaps it is (dare I say, it’s?) time for me to embrace contractions in briefs too.  In a quick Westlaw search, I found cases on many interesting ways attorneys have tried to circumvent word limits in briefs, but no published cases complaining only about contraction use.   

As you draft your next briefs and motions, I urge you to think about your contractions.  And if you are also spending a possibly-unhealthy amount of time this summer on contractions, please feel free to let me know.