Alphabet Attack

SlapIt 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.

Alphabet SoupNothing 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?

  1. I am aware that what most people, including the judges of the D.C. Circuit, call “acronyms” are technically “initialisms,” but I find that distinction pedantic and unworkable. [top]
  • KS

    The glossary in the pleading has only 20 terms, which does not strike me as excessive. That said, if I were to espouse a rule, I would allow acronyms for entity names like the New York Public Service Commission (NYPSC) but discourage acronyms for things like First Amended Complaint, where the term being abbreviated is not pronounced as an acronym in ordinary usage. There might be a better dividing line, but that’s at least one.

    • Ross Guberman

      That seems like a very fair and workable dividing line. From what I can tell, the attorneys on the government’s side, at least, did not create any acronyms like “FAC” for “First Amended Complaint.” A lot of the armchair critics praising the court’s “bench slap” really haven’t read the briefs to see what the attorneys had to deal with. Administrative law, by definition, has a lot of agencies, commissions, and associations, and telecom law has a lot of technical terms that can’t be reduced to layman-speak.

  • Annika K. Martin

    How about doing something similar to how we use case name abbreviations in citations, so you’d have Bell Op. Cos., Ill. Commerce Com’n., Ill. Pub. Telecom. Assn., etc.? It wouldn’t save as much space as an acronym, but at least you avoid the alphabet soup and requiring the reader to go back to the glossary repeatedly.

    • Ross Guberman

      This is an interesting compromise that I don’t see too often. I like the idea, though I wonder if judges would be distracted by the citation format. Another possible compromise would be using just some of the words of the agencies, as in “Illinois Commission.”

      The bottom line is that I see no easy solution here, and I think that calling the BOCs and ILECs anything but BOCs and ILECs probably does more harm than good.

  • With acronyms (and more broadly, any defined terms) I tell our junior associates to take a step back and ask whether using a particular acronym imposes additional work upon the intended reader and, if so, whether that imposition justified under the circumstances by some gain in clarity or efficiency. For example, depending on the court, defining the Federal Home Loan Mortgage Corporation as “FHLMC” may impose work upon the judge; and if so, it is hard to justify given the available alternative “Freddie Mac.” But to take it a step further, if Freddie Mac is relevant to the discussion only in its capacity as a purchaser of loans that are the subject of the instant dispute, why not ditch the acronym in favor of “Purchaser”? I think it is fair to assume as a writer that using BOC and LEC (and within the latter, CLEC/ILEC) in a telecom case should impose little burden upon a judge of the D.C. Circuit, and that whatever burden it does impose is justified by the widespread use of the same terms within the industry and literature (in other words, it is fair to tell the judge, implicitly, “If you don’t already know these terms, you should learn them to aid your understanding of this area of the law and disposition of this case.”). But with IIC and NYPSC, it may be that “Illinois Commission” and “New York Commission” would suffice and avoid adding unnecessarily to the alphabet-soup lexicon.

  • Ross Guberman

    Thanks very much, Patrick. Very helpful. The broader point is that for many writing problems like this, there’s no easy solution because of the competing pressures of word limits, varying levels of familiarity, conventions in different practice areas (and industries), the fear of being accused of being condescending (or, on the other hand, presumptuous), and so forth. That’s why I think that too many lawyers and judges take swipes at other lawyers without putting themselves in the lawyers’ shoes.

  • badeneunson
  • Nick_Wright_Editor

    If you run your writing thought the StyleWriter – plain English editing software, it will list all your acronyms, abbreviations and jargon. Then you can review and edit those you don’t need. It surprising how many writers use an acronym, define it and never use it again in the document.

    Nick Wright

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