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By Joel Schumm, Indiana University Robert H. McKinney School of Law
Many recent Indiana Supreme Court opinions, authored by nearly every justice, have used contractions:
“In exceptional situations, a court may employ the doctrine of equitable estoppel to allow a nonsignatory to enforce a contract, even though it wasn’t included in the agreement.” Doe v. Carmel Operator, LLC, No. 21S-CT-15, 2021 WL 137392, at *4 (Ind. Jan. 15, 2021).
“Allen isn’t excluded from eligibility for expungement under the SBI Exclusion because he wasn’t ‘convicted of a felony that resulted in serious bodily injury to another person.’” Allen v. State, 159 N.E.3d 580, 584 (Ind. 2020).
“The issue during trial wasn’t whether Loehrlein committed the offenses but rather whether he was sane at the time.” Loehrlein v. State, 158 N.E.3d 768, 773 (Ind. 2020).
“McCain has a two-year-old child; however, the court didn’t give this much weight either because of his limited involvement with the child . . . .” McCain v. State, 148 N.E.3d 977, 980 (Ind. 2020).
Only Judge Nancy Vaidik appears to use contractions regularly in Court of Appeals’ opinions.
Justice Antonin Scalia took a hard line against contractions, writing they might be viewed as “an affront to the dignity of the court.” A dated law school website emphatically instructs students to avoid them.
Justice Scalia’s co-author, Bryan Garner, took a different view: “The decision whether to use a contraction often boils down to this: do I want to sound natural, or do I want to sound stuffy? Here’s the test: If you would say it as a contraction, write it that way. If you wouldn’t then don’t.”
Noting the increasing use of contractions by judges, California Court of Appeals Judge Michael Raphael aptly compared their use to “casual Friday.” One cannot “go wrong being formal,” but as the culture changes “overdressing might even seem pretentious and out-of-place.”
Although norms may be shifting in Indiana, formality remains the safer route. As Justice Scalia explained in urging lawyers to avoid contractions: “those judges who don’t take offense will not understand your brief, or vote for your case, one whit more readily. There is, in short, something to be lost and nothing whatever to be gained.”
This article was originally published on the Appellate Practice Section page. To read more from the section, visit indybar.org/app.
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