On occasion I notice, and am extremely annoyed by, the use of ALL CAPS in a legal document or a piece of legislation. Grabbing my attention most recently have been examples of text from next month’s ballot. All the state questions and amendments are printed in all caps, as are the relevant sections in the League of Women Voters bluebook. Text set in all caps is insanely hard to read and is an assault on my typographic sensibilities, so I decided to find out if there’s a good reason, legal or otherwise, for the insanity.
As it turns out, there is. Well, not a good reason, but there are a number of not-so-good reasons. The primary one seems to date back to old requirements that certain important parts of contracts and other legal documents be set in “conspicuous” type to help ensure they aren’t overlooked. “Conspicuous” may be all caps, bold type, larger type, colored type, underlining, etc., but all caps was the easiest to do on typewriters, so it became the default style.* One Caps Lock keystroke, and you’re done. Later, as the all cap text was repeated and/or copied and pasted into other documents, it was easier to leave it in all caps than to try to change it. Those familiar with word processing know that all caps text converts easily to all lowercase, and vice versa, but conversion to proper mixed case usually entails a lot of manual proofing and correction to ensure accuracy.
Frankly, I think rather than ensuring that certain important blocks of text are conspicuous and not overlooked, the all caps style contributes mightily to making the important text difficult to read and more likely to be ignored.
The all caps style persists, as lawyer Gil Silberman explains, for several rather silly and indefensible reasons (his reasons, my interpretations):
- Convention: Lawyers stick to tradition.
- Folklore: Lawyers tend to be superstitious about what has worked in the past.
- Fear da judge: Don’t change anything that might work against you in a court case. (Maybe the judge likes all caps.)
- Coup de grâce: It’s this way because I, a lawyer, said so.
- Some fool at Cooley Godward “typed the whole thing with their caps lock engaged on their Wang or WordPerfect or whatever they were using back in 1980, and lawyers have been cutting and pasting the same block of text ever since.”
- Risk avoidance: If you copy and paste it, you can’t be blamed for any mistakes it contains.
- Archaic rules: Lawyers work hard to abide by what they think the old rule says about “conspicuous” text.
- Contract Katamari: Too many cooks …
Poor Silberman is tasked with removing the all caps nonsense from his firm’s library of startup documents, something I wish all lawyers and firms would do, but it seems unlikely to happen. He explains what the job entails:
Semi-seriously, for a moment, getting rid of allcaps and other contract junk is truly a lot of work. You have to retype the whole thing by hand to get the mixed case capitalization right (if the underlying characters are capitalized, control-alt-whatever won’t cure that, and even the sophisticated tools usually overdecapitalize words that should be in mixed case). Next, you and a colleague proofread the whole thing slowly and carefully, comparing it to the original, to make sure you haven’t introduced any errors. A second set of eyes is a must. Then you do some research on whether there is valid practical or legal reason why something has to be in a particular font style. Finally, you create a new style in your contract template for this kind of text so that you can put it in allcaps, smallcaps, italics, bold, offset, or whatever emphasis. Removing legal flourishes and pomp is even harder. No client wants to pay for that, so it’s an internal investment in the firm. When done you feel like the proud Camaro owner who just polished his hubcaps. Pointless, really, but it’s a matter of pride in your vehicle.
As a former editor whose job often entailed using a word processing program to impose house style and consistency on documents from other sources, I extend my deepest sympathies to Silberman. I’m not sure I could be paid enough to do what he (or more likely, his assistants) is doing.
*More on the “conspicuous text” rule from Luis Villa, Deputy General Counsel at the Wikimedia Foundation:
In the US, the law that requires conspicuous text for warranty disclaimers is typically a descendant of the Uniform Commercial Code (“UCC”) § 2-316.2 Practically speaking, this kind of requirement makes sense – it highlights areas that legislators have decided are particularly important and so can’t be hidden in the nooks and crannies of a document.
Unfortunately, historically, the only easy way for lawyers to make text “conspicuous” on a typewriter was ALL CAPS. Unfortunately, at some point along the way, many lawyers confused the technology (typewriters) for what was actually legally required. And so this is where we stand now – many lawyers will insist that ALL CAPS are required, when they really aren’t.
So if not ALL CAPS, what actually is required? This varies from rule to rule, unfortunately. But in the UCC, conspicuous is defined as text a reasonable person “ought to have noticed”, which includes:
“(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.”
(From UCC 1-201(b)(10); same text also appears in UCC 2-103(1)(b)(i).)