§ 17. Refer to people and companies by name.
Rewrite the following paragraph from a summary-judgment brief. Substitute names for procedural labels. Assume that the movant (your client) is Pine National and that the plaintiff is Peter Foster. You'll undoubtedly see the need for other edits, so improve the style as best you can.
Movant has conclusively established that Plaintiff did not initiate this lawsuit against Movant until after the expiration of the applicable limitations period. Plaintiff does not dispute this. Instead, Plaintiff seeks to avoid application of the limitations bar by (1) asserting that this is a case of misnomer, in which case limitations would be tolled, and (2) asserting that, under Enserch Corp. v. Parker, 794 S.W.2d 2, 4 - 5 (Tex. 1990), factual issues exist as to whether Movant was prejudiced by the late filing. Yet the evidence before the Court establishes as a matter of law that this is a case of misidentification (which does not toll limitations), not one of misnomer. Further, Plaintiff has not responded with any proof of a basis for tolling limitations under the equitable exception to the statute of limitations described in Enserch. The exception is inapplicable under the facts before this Court, and, therefore, prejudice or the lack thereof to Movant is not a relevant inquiry. Plaintiff's claims against Movant are barred by limitations as a matter of law.
Find a legal document in which defined legal labels, such as mortgagor and mortgagee, have caused the drafter to avoid pronouns, as a result of which the style becomes embarrassingly repetitious. Rewrite a paragraph or two of the example. If you're part of a writing group or class, provide each colleague with a copy of the example and the revision.
Find some authority that supports (or contradicts) the idea that you should refer to parties by name. Look at the literature on brief-writing and contract drafting. If you're part of a writing group or class, be prepared to discuss the authority you've found.
© 2001, Bryan A. Garner
These exercises appear in Bryan A. Garner's Legal Writing in Plain English: A Text with Exercises, published by The University of Chicago Press and available at bookstores and on the Web at www.press.uchicago.edu.