Using Contractions: It’s Not Wrong

contractionI’ve been wanting to write this post for some time. Inherited wisdom says you can’t use contractions in legal writing because it’s too informal. Poppycock. There’s nothing wrong with using contractions. Like anything else (e.g., em dashes, semicolons, commas, capitalization, boldface for emphasis), you shouldn’t over-use them. But contractions are a perfectly acceptable tool to include in your legal writing toolbox. Don’t believe me? Let’s consult the authorities.

Here’s Judge Higginson writing for the Fifth Circuit, just earlier this year (822 F.3d 228, 235):

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Here’s Justice Alito in a concurring opinion for the U.S. Supreme Court just last year (135 S.Ct. 1074,1089):

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And here’s Justice Kagan, dissenting in that same case (135 S.Ct. 1074, 1091-1092):

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Here’s a SCOTUS short-lister, Judge Gorsuch, writing for the Tenth Circuit in the 2015 opinion I was talking about in my previous blog post (see opinion here at p.2):

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Here’s another SCOTUS short-lister, Justice Willett, endorsing “judicial engagement” (or what some might call “judicial activism”) in a 2015 concurring opinion for the Texas Supreme Court (469 S.W.3d 69, 95):

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And here’s Justice Willett again, in 2014, dissenting from the Texas Supreme Court’s denial of a petition for review (481 S.W.3d 210):

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Here’s Judge Higginbotham writing for the Fifth Circuit in 2007 (488 F.3d 624, 628):

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Here’s a per curiam Fifth Circuit opinion in 2007 (2007 WL 486770, at *3):

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And here’s another (2007 WL 836932, at *2):

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Here’s Justice O’Neill writing for the Texas Supreme Court in 2003 (119 S.W.3d 707, 708):

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Here’s Chief Justice Phillips for the Texas Supreme Court in 2001 (51 S.W.3d 583, 594):

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And if you’re looking for older (i.e., “more established”) authorities, here’s Justice Stewart writing for the U.S. Supreme Court in 1966 (385 U.S. 293, 305):

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Here’s Justice Brennan writing for the Court in 1963 (371 U.S. 471, 474):

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And here’s Justice Frankfurter writing for the Court in 1961 (367 U.S. 1, 24-25):

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Note: this is not an exhaustive list of examples; these are just some of the better examples I found after a quick search for common contractions in federal and Texas-state-court opinions.

And if it’s not enough that courts do it, here’s a snippet from a footnote in a brief that was just filed by Supreme Court regular Deepak Gupta (see brief here at p.30):

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In sum, there’s plenty of precedent for using contractions in legal writing. It’s okay. You can do it. Just don’t do it too often. In my quick search, I rarely found opinions (or briefs) that used more than one or two. And, of course, the large majority of briefs and opinions don’t have any. I didn’t find any when I searched several briefs by Paul Clement, or when I searched maybe a dozen briefs from the SG’s Office. So if Clement or the SG’s Office is your model, don’t use contractions.

As for me, I’m comfortable following the lead of good writers like Kagan, Gorsuch, and Willett—and legends like Brennan and Frankfurter—so I’m comfortable using the occasional contraction.