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Legal Writing Notebook: One (1) confession of a serial enumerator

A reader recently asked, “Is there anything you can do to make lawyers and judges knock off the irritating (irritating) repetition of spelled-out numbers?”

Thank you, dear reader, for your excellent question.  About the judges?  No.

Lawyers, however, might want to read on.

You know what I’m talking about. “The World Organization agrees to pay Doctor Evil the sum of One Million Dollars ($1,000,000) …”  Although Minnesota has long recognized that “Roman and Arabic numerals are parts of the English language,” see Minn. Stat. sec. 645.09, more often than I care to admit, I have written variations on this theme, pairing a spelled-out number with its equivalent in Arabic numerals as if translation were needed.

Why?  Why do I do it when I know it’s wrong?

It could arise from fond memories of law school, when writing “thirty (30) days” felt like a secret lawyer handshake. More likely, it’s because the alternatives are complicated. When poised over the keyboard, I remember that the word-versus-numeral choice depends on the size of the number, how the number is used, what I’m writing, which authority I’m following, and so on.  Sooner or later the simplest option is not to choose. If I’m dressing in a hurry and really don’t want my trousers to fall down, suspenders really do seem to accessorize pretty well with a belt.

But everyone agrees it’s wrong.  Legal writers like to blame it on contract drafters, but even among contract drafting stylists such as Kenneth Adams, Tina Stark, and Howard Darmstadter, the practice is widely condemned.

So why do we do it?

Adams and Stark suggest the practice may have evolved from competing incentives: numerals read easier, but words can be a “safety net” reducing the risk of a devastating typographical error.  Bryan Garner traces the practice to an effort to eliminate fraudulently altered checks.  The practice has been encouraged by Uniform Commercial Code Section 3-114, a rule of construction for negotiable instruments, which provides that in all conflicts between words and numbers, “words prevail over numbers.”  From all of which I deduce that lawyers use numerals to be clear, then add words to be … clearer. Also: we’re really lame proofreaders.

Thus for negotiable instruments, repeating numerals and words may not always be wrong.  If you need a safety net — double up.  (Do you want to upset the U.C.C.?  I surely don’t.)

Everywhere else, let’s just knock it off.   When writing anything other than a negotiable instrument, we should all stop repeating numbers because it makes discrepancies more likely and documents harder to read.  Reading the same thing in two formats invites the reader to slow down and compare, which is probably not the point the author is making (imagine if road signs read SPEED LIMIT FIFTY (50) MPH).  In addition to slowing the reader down, repetition increases the chance of a mistake.  Parties write in a contract, “payment must be made within thirty (20) days of delivery,” begetting ambiguity than may in turn beget years of headache.  In any context, doubling up invites discrepancies, and in contracts, discrepancies become a fertile source of litigation.

Speaking of litigation, trial lawyers have even less justification for the practice.  There is no good reason ever to write, “Summary judgment is proper on the following thirteen (13) grounds.” (There’s probably no good reason to bring a motion on that many grounds either, but that’s a different column.)  The number is convenient, not legally operative, and so typos are just embarrassing, not catastrophic.  Don’t double up; choose one and double down.

The case against using both being now (I hope) self-evident, let’s consider anew the problem of which to use.  The choice presents a classic example of competing preferences.

Authorities on brief writing largely agree that very small numbers one through nine (or ten) should be spelled out.   What happens next is subject to debate.  Some — including Adams, Garner, Stephen Wilbers, and the U.S. Solicitor General’s Office — prefer jumping immediately to numerals.  Others, such as Lenné Espenscheid, continue with words through number ninety-nine; the Bluebook agrees, subject to seven enumerated exceptions (see Rule 6.2).  Meanwhile, some contract drafting stylists recommend the opposite approach — using numerals exclusively, until the numbers get very large. Darmstadter and Stark recommend reintroducing words for large numbers ($10.5 million rather than $10,500,000) to reduce the risk of error.

What’s a harried practitioner to do?

Let’s end the madness.

Here’s my strategy to stop myself before I serially enumerate again.  Try it, and let me know how it works for you.

  • Pause, take a breath, and have a cookie.  (Seriously— the sugar combats decision fatigue and will keep your fingers away from the keyboard as you consider your options.)

While enjoying the cookie, consider these simplified principles:

  • Choose numerals, or words—be loath to use both.  The choice is a matter of preference, and should be consistent within a document; clarity is the goal.
  • In a contract: prefer numerals.
  • In a brief: prefer words for numbers one through nine.  Use numerals for numbers 10 and above.
  • For large numbers: combine numerals and words to minimize errors ($10.5 million).
  • In a negotiable instrument:  check the state’s U.C.C. and draft accordingly.
  • Proofread already!
Karin Ciano

Karin Ciano

Bonus extra credit: Never start a sentence with a numeral. Seriously, not even in a text.

I hope that these principles will go some way to eliminating needless (needless) repetition, and look forward to hearing more of your questions and thoughts on legal writing.

Karin Ciano is owner of Karin Ciano Law PLLC and director of Twin Cities Custom Counsel PLLC. Contact her at karincianolaw.com.

About Karin Ciano

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