Alphabet Attack

It wouldn’t be spring in America without some federal judges publicly criticizing attorneys in a genre now known as “benchslap.”

The offended court this time: the D.C. Circuit. The court’s target: acronyms in briefs filed in a complex telecom dispute. The benchslap: “It is ordered . . . that the parties submit new briefs that eliminate uncommon acronyms used in their previously filed final briefs.” The court even cited its own practice handbook for good measure: “[i]n briefs the use of acronyms other that those that are widely known should be avoided.”

Twitter was abuzz, and the court’s critique has superficial appeal indeed.

I understand that no one loves acronyms—in theory.¹ Self-proclaimed in-house curmudgeon Mark Hermann makes a fair point when he writes that “Words are (generally) better than letters.” He criticizes the use of “FAC” for “First Amended Complaint,” for instance, and he pokes fun at a lawyer at a firm he retained for referring to “Porsche Cars of North America, Inc.” as “PCNA.”

In his terrific but acerbic guide to advocacy, The Wrong Stuff: How You Too…Can Lose Your Appeal, Ninth Circuit Chief Judge Alex Kozinski similarly mocks this example from a brief: “LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.” In the words of this judicial wit, “Even if there was a winning argument buried in the midst of that gobbledygook, it was DOA.”

And closer to home, D.C. Circuit Judge Silberman, one of the three signatories of this week’s No-More-Acronyms Benchslap, once chastised the parties to a regulatory proceeding for “littering their briefs with references to ‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC.’”

Fair enough. But I have a rule for legal-writing critics: If you complain about a problem, propose a workable solution. Footnote-haters, for example, rarely suggest where attorneys should put the additional authorities and other material that they would normally relegate to a footnote.

So rather than speaking in generalities from afar, let’s start by asking why smart attorneys use acronyms even though they, too, might prefer to avoid them in theory.

Sometimes, it’s to meet word-count limits. Not an inspiring reason, perhaps, but a real one.

Other times it’s to conform to standard usage. Many an attorney will nod upon hearing CERCLA, but will shoot you a blank stare if you mention the Comprehensive Environmental Response, Compensation, and Liability Act.

But more often than not, it’s to make the most of a no-win situation. In that spirit, let’s take a closer look at one of the briefs the D.C. Circuit rejected, the final brief filed by the FCC and the DOJ (or should I call it “The United States Department of Justice”?).

[Disclosure: I’ve conducted training at the FCC, at the DOJ, and at the law firm representing the state commission.]

In keeping with Judge Silberman’s earlier benchslap, the government lawyers provided a glossary for the many acronyms they used.

Nothing here strikes me as unusual or scandalous. FCC is hardly controversial. BOCs for Bell Operating Companies and LECs for local exchange carriers are standard telecom industry lingo that surely must be familiar to the judges of the D.C. Circuit, of all places. Closer calls might be ICC for Illinois Commerce Commission and IPTA for Illinois Public Telecommunications Association, but just “Commission” and “Association” could get confusing too, not to mention that the case involves another commission, the New York Public Service Commission, defined as NYPSC.

If it’s easy to avoid acronyms in discussing telecom and other regulatory matters, I imagined that the D.C. Circuit Judges themselves would have figured out how to do so. And so I took a look at a recent telecom opinion from D.C. Circuit Judge Kavanagh, another No-More-Acronyms Benchslap signatory. Sure enough, in the first two paragraphs alone, in addition to FCC, Judge Kavanagh introduces LEC for local exchange carrier, CLEC for competitive local exchange carrier, and ILEC for incumbent local exchange carrier. Pot calling the kettle black—or just a common-sense judge referring to entities the same way that the regulated industry refers to them?

I’m not saying the court is in the wrong here. But to paraphrase Donald Rumsfeld, you write a brief with the terms you have, not with the ones you might want or wish to have.

So here’s my challenge, readers: Rather than railing against acronyms in theory, let’s put ourselves in the shoes of the attorneys who had to write the briefs in question. How should they have handled Bell Operating Companies and local exchange carriers, if not by calling them BOCs and LECs? And if ICC is no good for “Illinois Commerce Commission” and IPTA is a poor choice for “Illinois Public Telecommunications Association,” what say you?

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