Judge Silberman of the DC Circuit recently revived the topic of how and whether to use acronyms in an appellate brief. He created a stir by harshly criticizing a law school professor for submitting a brief too laden with acronyms. Judge Silberman stated:
Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.
The use of obscure acronyms, sometimes made up for a particular case, is an aggravating development of the last twenty years. Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means. Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.
Delaware Riverkeeper Network v. Federal Energy Regulatory Comm’n, No. 13-1015 (D.C. Cir. filed June 6, 2014), p. 31.
The lament is not new. In 1992, Judge Kozinski plucked this example from a Ninth Circuit brief: “LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RTP and TIP conformity to SIP.” Judge Kozinski concluded that this “gobbledygoop” was “DOA.” Kozinski, The Wrong Stuff, 1992 BYU L.Rev. 325, 328.
Okay, okay, we get it, we get it. But must we keep repeating the “Environmental Protection Agency” instead of saying the EPA?
Tip 54 in Bryan A. Garner’s book, The Winning Brief, offers three suggestions on how to use acronyms properly.
Know your audience.
Some judges deal routinely with specialized areas of the law. In those courts, abbreviations amount to a jargon that everyone understands.
For example, Judge Silberman’s criticism of acronyms is in a concurrence to a DC Circuit Court opinion that dealt with whether the FERC violated the NEPA. The Court discussed the EIS before concluding that the FERC’s EA was deficient. Delaware Riverkeeper.
Thankfully, the Court defined the abbreviations before using them. But the acronyms may still be obscure to those of us less familiar with environmental law.
And your judges may also lack the DC Circuit’s familiarity with the FERC, NEPA, EIS, and EA. What do you do then?
Consult a good dictionary
Garner next suggests that brief writers check whether the acronym is in a good dictionary. For example, Black’s Law Dictionary includes entries for the FBI, FCC, FDA, and FDIC. Acronyms familiar enough to make it into a standard dictionary arguably lack obscurity.
Use shorthand made up of real words
Lastly, it is often possible to shorten terms with real words. It does not take too many more characters to call the FBI the Bureau, the FCC the Commission, the FDA the Agency, or the FDIC the Corporation. Using real words balance a desire to avoid lengthy repetitions with the desire to be clear.
Has anyone faced a confusing, alphabet-soup brief? Please tell us about it.