Benjamin G. Shatz
Partner
Manatt, Phelps & Phillips LLP
Appellate Law (Certified), Litigation
Email: bshatz@manatt.com
Benjamin is a certified specialist in appellate law who co-chairs the Appellate Practice Group at Manatt in the firm's Los Angeles office. Exceptionally Appealing appears the first Tuesday of the month.
If Herman Melville had been a lawyer, perhaps "Moby-Dick" would have started: "Call me Ishmael ('Ishmael')." Even though the novel runs over 600 pages, Melville saw no need to "define" the first-person narrator beyond his own self-intro. Similarly, when the white whale is finally named (in Chapter 36), there is no "Moby-Dick ('Moby-Dick')"--though many lawyers seem to think that such "definition" is important, even if the context (or the caption) itself already makes that obvious. To be clear: That silly parenthetical naming convention is not helpful and is not good writing.
Appellate briefs invariably require naming and referencing the players, including the parties to the dispute, third parties who are involved, the trial court, and the reviewing court. Doing this effectively and efficiently should be easy. Yet somehow it isn't. Bryan Garner's "The Winning Brief" (3d ed. 2014) devotes an entire chapter (Chapter 31) to this topic! (As does Jill Barton's "The Supreme Guide to Writing" (Oxford Univ. Press 2024) (Chapter 22, Names and Titles).) Here are some best practices to help.
Parties. Almost by definition, litigation typically involves at least two parties, a plaintiff and a defendant. But before becoming litigation adversaries with court designations, these people or entities had real names in the real world. (Can't you hear them singing Jim Croce's "I Got a Name"?) When telling their story, it is usually best to simply use those actual names. Indeed, both federal and California guidelines urge this.
Federal Rule of Appellate Procedure 28(d) explains: "In briefs and at oral argument, counsel should minimize use of the terms 'appellant' and 'appellee.' To make briefs clear, counsel should use the parties' actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as 'the employee,' 'the injured person,' 'the taxpayer,' 'the ship,' 'the stevedore.'" (Seriously. The Rule includes "the stevedore." Apparently many federal briefs involve persons or companies who load and unload cargo from ships.) Similarly, California Style Guide § 6:7 exhorts: "In briefs ... use the trial designations or personal names in referring to the parties (i.e., do not use 'Appellant' and 'Respondent'). ... Occasionally, it may be simpler to use appellate designations if the issues relate to proceedings in the reviewing court. Be consistent, however, in how parties are designated. Do not refer to the same party successively, for example, as 'Plaintiff,' 'Respondent,' and 'Board.'"
Why? Because using generic terms like "Appellant" can be confusing to an appellate judge who is working on dozens of appeals all involving, of course, an appellant. Referring to parties by their role on appeal requires the reader to look back at the cover to answer the question, "Wait, who's the appellant again?" The same is true for calling a party by their trial court role; it can be hard for a busy reader to remember who's who when only generic terms are used.
While "The Naming of Cats is a difficult matter" (at least for T.S. Eliot, who also seemed to have difficulty in not capitalizing ordinary words), the best approach when naming people in briefing is often to use the person's last name. The law is used to this. A case between Daisy Jones and The Six, LLC, would be called Jones v. The Six. In such a case, when Jones is first mentioned in a brief, there is no point to writing "Daisy Jones ('Jones')" because the case caption itself makes clear who Jones is. The exception to this, of course, is when Daisy is adverse to someone else also named Jones. Thus, in her divorce case from John-Paul Jones, each of the litigants should be named just using their first names. (When courts do this in opinions, they often include phrasing in a footnote to the effect that "no disrespect is intended, but for simplicity and clarity, first names will be used.") See Transamerica Life Ins. Co. v. Arutyunyan, 93 F.4th 1136, 1139 n.1 (9th Cir. 2024) ("Because Defendants share the same last name, we will hereafter refer to each of them by their respective first names").
In those funny cases where entity parties have essentially the same name, either come up with a creative solution or use the trial court designations (never the appellate court designations). E.g., Deep Foods Inc. v. Deep Foods Inc., et al., 419 F.Supp.3d 569 (W.D.N.Y. 2019) (court uses "Plaintiff" and "Defendants"); Plantations at Haywood 1, LLC v. Plantations at Haywood, LLC, 2025 WL 444857 (G062909, 2025).
In naming entities with long names, devise a short-form phrasing that makes sense. Instead of North Shore Municipal Water District, what's wrong with "the District"? (Assuming there is no other "district" of any sort involved in the case.) "North Shore" has a nice ring to it as well. Using NSMWD is just plain ugly, and while initialisms may be convenient for the writer, they are not kind to the reader. While Franklin D. Roosevelt (or should we call him FDR?) could get away with alphabet soup (i.e., in the abundance of abbreviations and acronyms used for New Deal agencies like the Civilian Conservation Corps (CCC), the Works Progress Administration (WPA), and the Tennessee Valley Authority (TVA)), careful writers know to avoid acronyms. (Hyper-technical aside: Strictly speaking, "acronyms" are abbreviations formed from the initial letters of other words that are pronounced as if they were words, e.g., NASA or NATO. If an abbreviation is pronounced one letter at a time, as in CIA or FBI, then it's an "initialism" not an acronym.)
The California Style Guide teaches: "Use restraint in adopting acronyms. Readers cannot be expected to recall the referents for a multiplicity of acronyms in a document. ... If an acronym is commonly known and appears in dictionaries, no parenthetical designation is required." Cal. Style Manual, § 4:64 (citing as examples, "FBI," "CIA," "IRS"). On the topic of acronyms and unusual names, do readers a favor and abbreviate when helpful. Thus, in NMSBPCSLDHB v. County of Fresno (2007) 152 Cal.App.4th 954, the court mercifully called the plaintiff/appellant "NMS."
Good writing is consistent and evenhanded. Thus, do not refer to your client as "Dr. Smith" and the other party as "the plaintiff." The notion that such a tactic may humanize your side while objectifying the other is too transparent to be of any persuasive value. Garner calls this gambit a canard. "The Winning Brief" at 250.
Also worth pointing out -- because so many get this wrong --is that when captioning a state court appeal arising from a writ or other proceeding in which parties are "petitioner" and "respondent" in the trial court, on appeal "the parties are redesignated as 'Plaintiff' and 'Defendant.'" Cal. Style Manual § 6:28[B]; see also §§ 6:7, 6:29, 6:42. This avoids confusing (or seemingly absurd or contradictory) designations like "Petitioner and Respondent."
(An aside: did you know that the California Rules of Court define "Appellant" and "Respondent"? "'Appellant' means the appealing party" and "'Respondent' means the adverse party." Rule 8.10. But does that mean that from the respondent's perspective, the adverse party (i.e., the appellant) is really a "respondent"?)
Third parties. Most stories have more than two characters, so it is often necessary to refer to non-litigants in brief writing. Doing so is usually easy, and the same rule applies: Use their names, but also use some descriptive term so the reader knows how this person fits into the story (e.g., "the supervisor"). Indeed, many times, a coherent story can be told without using third-party names at all when descriptors alone will suffice. Moreover, sometimes using the name of someone who has been caught up in another party's dispute can be problematic. California style thus has a protective nondisclosure rule, so that if naming an innocent person or victim would serve no useful legal or social purpose, then anonymity should be used. See Cal. Style Manual § 6:18; and see Cal. Rules of Court, rule 8.90.
Similarly, using too many names that don't matter can be a distraction. Thus, if a witness is only going to be mentioned once and there's no reason to name her, then don't clutter the story by doing so; just write, "A witness to the accident testified the light was red." Providing a plethora of unnecessary names, dates, and unimportant details is an entrenched problem in legal writing.
If a story truly requires the naming of numerous participating characters, then consider taking a page from playwriting and include a dramatis personae, listing out everyone in one place with their names, descriptions, and roles. This is rarely necessary, but can be very helpful on rare occasions. E.g., Deevy v. Tassi, 21 Cal.2d 109, 112 (1942); Dong v. Board of Trustees, 191 Cal.App.3d 1572, 1577 (1987); United States v. Garcia-Pastrana, 584 F.3d 351, 358 (1st Cir. 2009) (listing 11 defendants).
In terms of typography, don't use all caps or italics for names, which is a bizarre convention sometimes seen, but never appreciated. Also -- with apologies and respect to Detective Virgil Tibbs -- drop courtesy titles, like Mr. and Mrs. Using names is simpler and reduces the word count.
If a party is acting in propria person (or "pro se," in federal lingo), sometimes a brief will be written in the first person, using "I" rather than the party's name. This rarely works well. (For an odd example, see the opening brief by a lawyer representing himself at 2007 WL 2455256 (B194325, July 18, 2007) ("(This brief hereafter refers to its author in the first person, because wisely or otherwise, I represent me.)").) In this instance, it's ok to emulate Hall of Famer Rickey Henderson and refer to yourself by your name. (This practice, called "illeism," is well named, since in speech it often makes listeners feel ill.)
The trial court. We've all got baggage. This includes every case on appeal, which always has some sort of procedural history in a trial court before at least one trial judge. In referencing what happened in court before the appeal, it's best to focus on the "court" and not the "judge," to maintain a level of detachment and not focus on the individual in the robe. Of course, sometimes it is necessary (or desirable) to name a particular judge -- perhaps multiple judges were involved and they need to be distinguished. But ordinarily, call the trial court the "trial court" (or perhaps the "district court" in federal court) and leave it at that.
The Federal Circuit Court of Appeals has a policy that, to show respect for tribunals being reviewed, they are never called "the lower court." Fed. Cir. IOP #11(9) ("Respect for the tribunals from whose judgments and decisions appeals are taken to this court requires care in referring to those tribunals in our opinions. Reference should not be made to 'the court below,' 'the lower court,' 'the lower tribunal,' or 'the judge below.' Reference should be made to, e.g., 'the district court,' 'the trial court,' 'the district judge,' 'the trial tribunal,' or 'the court.'").
The reviewing court. Finally, it is often necessary to refer to the court reading the brief. When doing so, it is awkward to say something like "the Ninth Circuit held in Jones ..." when addressing the Ninth Circuit itself. Thus, the better practice is to simply to write "this Court has held in Jones ..." or "Jones held ..." See Dan Schweitzer, "U.S. Supreme Court Brief Writing Style Guide" (NAAG Center for Supreme Court Advocacy, July 2017) p. 4. And when addressing the court itself, use capitalization, e.g., "This Court should affirm because ..."
Conclusion. As exemplified by Supreme Court opinions and summarized in "The Supreme Guide to Writing": "Be consistent, impartial, and concise," use names "to tell a person's story but generic references to frame the bigger picture," "Skip gender-based courtesy titles," and "Use parentheticals to show shortened names only when needed to avoid confusion." Barton at 100-03.