A capital idea

Do you have a friend who eschews capitalization in e-mails? If so, do you sometimes find it difficult to glean his or her e-mails' meaning upon first reading them? My answers to those questions are yes and yes. The reason why it's sometimes difficult to understand those e-mails, of course, is that capitalization gives us important clues to decipher a particular word's precise meaning in the sentence.

Capitalizing every letter carries just as much a cost to understanding as does refusing to capitalize any letter. Bryan Garner makes this point very well in an example I will set out below. I'm a big Garner fan, but I understand he isn't everyone's cup of tea. But any given Garner suggestion should not be accepted or rejected simply because he put it forward. Rather, it should be evaluated based on how well it promotes effective communication. Reasonable minds can and do differ on some of his suggestions, such as putting citations in footnotes. But is there a counterargument to his point about capitalization? Garner condemns writing in all caps -- like the standard format for issues presented in a CAAF supp -- because all caps "impair readability." Bryan A. Garner, A Dictionary of Modern Legal Usage 130 (2d ed. 1995). He explains that "the eye cannot easily distinguish among characters that are all of uniform size."

He then offers this example. "Try reading these passages, which are ordered by increasing readability:

"EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL NOTICES SHALL BE IN WRITING AND SHALL BE DEEMED TO BE DELIVERED WHEN DEPOSITED IN THE UNITED STATES MAIL, POSTAGE PREPAID, REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO THE PARTIES AT THE RESPECTIVE ADDRESSES SET FORTH ON EXHIBIT B OR AT SUCH OTHER ADDRESSES AS EITHER PARTY MAY SPECIFY BY WRITTEN NOTICE.

"vs.

"Except as May Be Otherwise Specifically Provided in This Agreement, All Notices Shall Be in Writing and Shall Be Deemed to Be Delivered When Deposited in the United States Mail, Postage Prepaid, Registered or Certified Mail, Return Receipt Requested, Addressed to the Parties at the Respective Addresses Set Forth on Exhibit B or at Such Other Addresses as Either Party May Specify by Written Notice.

"vs.

"Except as may be otherwise specifically provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the parties at the respective addresses set forth on Exhibit B or at such other addresses as either party may specify by written notice."

Id.

Does anyone think that either the first or second example is easier to read than the third? If not -- and I certainly think the third is by far the most readable of the three -- then why would we ever want to write in one of the lesser styles? (I have another reason for avoiding the second style that Garner doesn't mention. When you read something like the second example, do you sometimes conduct an internal debate about why a particular word -- say "there" or "this" or the "to" in "to be" -- is or isn't capitalized because the writer didn't use the same convention that you learned in whatever grade it was when we learned which letters to capitalize in a title? I certainly do. Using normal capitalization rules avoids distracting the reader with such internal debates.)

Garner observes, "What an odd phenomenon it is that lawyers -- whenever they want to draw special attention to passages, such as main issues in a brief or warnings in drafted documents -- make them typographically impenetrable." Indeed.

When I am considering fine points of briefwriting, I often check myself by asking, "How does the Solicitor General do it?" So I looked at several recent cert petitions filed by the SG. Sure enough, the QPs in the Solicitor General's briefs follow standard textual capitalization conventions -- no all caps or initial caps.

But in military justice practice there is a problem. CAAF Rule 24 provides that "[i]ssues presented will be set forth in upper case letters." Why on earth is that rule there? The rules have to micromanage the briefwriting to the point of commanding particular capitalization?

If anyone on the CAAF Rules Advisory Committee is reading this, please propose a change to Rule 24 to eliminate that sentence. Let the individual counsel choose how to capitalize the issue presented. I don't think anyone reading the supp will be unable to discern where the issue presented is even if it isn't in all caps. And upon locating it, the reader just might find that it is more comprehensible.

--Dwight Sullivan