Understanding the Basics of Numbering in Legal Writing
Rules of procedure, contracts, correspondence, notices, and more—legal documents come in many forms. One thing that is common to nearly all of these documents, however, is the need to reference or point out various items of content by various methods—including ranks, hierarchies, and tabulated lists. But what consistency, if any, is there among all the ways of ranking items in a list of points or items? In over two decades of drafting and revising my clients’ documents for the plain language legal drafting standards of The Redline, I have noticed that most documents have a disconcerting lack of consistency to their numbering methods. Consequently, I decided to document just what is going on with all of these different numbering systems and what kinds of practices we should exist or be aware of to help improve the overall clarity of legal documents.
This chapter will help you understand basic concepts behind numbering or lettering items in lists, including indentation and alignment, so that you can determine which numbering your document requires or that best fits the intent of your text. There are five areas where numbering shows up in legal documents: When these lists require a punctuation mark, the answer is not always obvious. For example , although most law firms now use proofing tools to revisit punctuation, spellings, and hyphenation, not all of these tools are programmed to test for correct usage of granularity, such as whether to use semicolons at the end of items in lists, such as for lists with or without the use of commas between all items. If a line is long enough to wrap, wrap it, and indent it from the first line so that it remains aligned with previous lines of the same level. The Indents Ruler shows the total indents, Level 1 through Level 4. If the first line appears aligned with the left margin and you want it to begin in its position at the right edge of the page, then stretch all four indent markers as far to the left as possible. Some of the indent markers represent character counts. That’s not a true, hard-and-fast rule. The indent can be some multiple of 1, and the spacing may be different depending on the selected font. Correct use of punctuation is generally clearer to the reader, as well as easier on the eyes, when you optimize the spacing by ensuring the space between two consecutive punctuation marks is a uniform height. And so you have proper indentation, the right punctuation alongside spacing, and the right indentation for the entire list.
The Purpose of Numbered Lists in Legal Documents
To facilitate ease of understanding and clarity of information, lawyers often employ numbering and bullets. This works especially well with lists.
Why do lawyers use tabulated lists? (i.e., numbered and/or bulleted lists) Generally, lists are employed in legal writing for any of the following reasons: Internal and external readers alike appreciate the advantages of numbering a list. First, numbering promotes readability. We all process a large collection of ideas more efficiently when they are presented in list form. Lists tend to be succinct. It is easier to regard ideas as separate and distinct when they are presented in a series of bullet points or an enumerated list. Second, lists also provide a clear and economical organizational structure. Because we are accustomed to analyzing and comparing lists, we can immediately perceive a point-by-point similarity or distinction and understand how they relate to one another. We can turn back and forth between the ideas that are listed without disrupting the flow of our thought. Because lists are separate and distinct from text, they are much easier to index and refer to during pre-trial document review and trial preparation. When paragraphs are used, it is easy to inadvertently group unrelated ideas into a single paragraph. When all of the ideas are listed separately, the writer is much less likely to inadvertently mix unrelated concepts together. When properly crafted, numbering and bullets will compliment other organizational features of the brief. For example, we all know that roman numerals are routinely used to indicate sections of a brief. Roman numeral formats are also used in a similar manner to indicate enumeration in the text. Using one set of numerals to indicate sections of a brief and a second set of numerals to indicate enumeration in the text avoids confusion. Also, there is an important distinction between using arabic numerals in the body of a brief and section numerals to indicate supplemental legal authorities. If the heading for each section of the brief is marked with the section number, this saves the lawyer from having to place internal citations to the same section numerals throughout the brief. The reader will recognize that legal authorities appearing before that section number refer to that same section. However, this only works if the citing authority is placed on the right side of the page. If the authority is placed on the left margin as footnote, this will not work. In that case, the reader will think the footnote number refers to the next footnote that appears on the page.
Numbering 101: Style Guidelines and Legal Writing Rules
Numerical issues often surface in each of the major style guides as "problematic." The Bluebook considers it a "well-accepted rule" that the first element of a list should be followed by a period and succeeding elements divided by an em dash followed by a period. 7th ed. r. 3.3(b) . While no explanation is offered, this period-after- a-number usage may well have its origins in typewriting days when the period was the customary means of separating thoughts at the end of sentences. Black’s Law Dictionary (10th ed. 2004) recognizes that the use of periods or parenthesis after numbers in a list is a matter of preference, rather than a matter of correctness, but prefers periods. The Francis Gentry Brief Writing Guide 18 (2004), prefers periods after numbers and letters. The ALWD Citation Manual (3d ed. 2006) prefers periods, although similar to the Bluebook, it does not explain why. Other guides contain cautions about the placement of periods after particular numbers in a sequence. E.g., A Manual of Style for Contract Drafting 144 – 46 (2d ed. 2010) (cautions regarding using periods after numbers in agreement material references). The Chicago Manual of Style (15th ed. 2003) prefers no punctuation after numerical items in lists. The Thomas Blackwell Baseline Manual for Lawyers 9 (1998), suggests that periods are "optional" in some numerical references. The National Institute of Standards and Technology (NIST), Special Publication 800-37 Revision 1, recommends periods and the associated format same format as found in the "qartos" example of IESNA RP-16-1995 "Lighting Control Symbols" cited in the IEEE Code of Ethics. The Riverside County, California, District Attorney’s Office Guide To Drafting Appellate Briefs (1994), suggests that periods are to be used after items in a numerical list when the items are a complete sentence or independent clause. The University of New Mexico School of Law Writing Center, recommends a format for numerals and punctuation similar to that of the IES article cited above. The standards used by the American Psychological Association, the Modern Language Association, and the American Medical Association are inconsistent with the predominantly accepted practices of using a period after numbers and other commonly used style manuals.
Best Practices for Creating and Manipulating Numbered Sections
The first easy — and good — technique is to use the built-in numbering feature in your word processor. This basic function is likely to be found in the "Table," "Format", or "List" menu bar area at the top of your screen. (Note: Apple’s pages 08 program has the basic numbering function under the "Insert" option in it’s menu bar.)
To insert a basic, sequentially numbered list, select the paragraphs you want numbered and then click the corresponding menu option to add the numbing to the paragraphs. The paragraphs will be number as a single list. This is whether you have selected multiple paragraphs, each with paragraphs of text in them, or paragraphs with just one or two sentences in them.
As was mentioned previously, you can also create sub-lists in the same manner explained above. To insert a sub-numbering list, place the cursor at the end of the paragraph under which you wish the sub-list to be placed, hit enter, and then go through the same process noted above for creating a normal list. This time though, when you have the entire paragraph – or paragraphs – highlighted, select the menu option that allows you to multi-level indent, and then hit the tab key on your keyboard to indent the sub-list you are adding below the paragraph you have just selected. Again, depending on your version of Microsoft Office, the placement of the multi-level indent option may vary.
Common Numbering Pitfalls to Avoid in Legal Writing
One of the most common mistakes made in numbering tabulated lists is to use non-parallel and illogical sub-numbering. The elements within a list need to be numbered in a way that makes sense and helps the reader understand the organization of the information. When one sub-element is alphanumeric (for example, a.(1)), the subsequents should follow the same format, in logical progression, or you risk jarring the reader. For example, if "a. Properties owned by Seller" is followed by "b. Properties Owned by Buyer" the next sub-item should have a logical continuation such as "c. Available Properties" rather than "(2) Possible Properties." Parentheticals should only be used when they are meant to indicate a part of a whole, such as "(a) Property A," "(b) Property B . " Using them as an extension of a numbering system, as in "(8) Third Property" is a mistake.
Other common mistakes occur when numbering for purposes of organization and citation are ignored, or worse yet, not even established early on in the drafting process. These basic qualifications for using numbers include:
Counsel must be diligent on numbering issues because often the parties do not pay attention to numbering for the first several drafts of documents. As a result, by the time everyone becomes engaged in a project, the project organization is already established and difficult to change.
If you don’t have a numbering system in mind from the start, it is important to insert charts in the drafting phase in order to guide your readers through the whole document easily.
Case Study: The Art of Numbering Sections and Chapters
Case Study 1: Parties to a contract
When entering into a contract, it is critical that you consider all parties to that contract. Commercial transactions often involve lenders or other parties who act as key stakeholders, meaning that they should be included as parties to the contract. However, it may be appropriate for you to carefully choose the parties to an agreement.
Knowing when to include corporate parties in an agreement is critical. In a 2013 decision, Wal-Mart Canada Corp. v. Ontario, the Ontario Superior Court of Justice found that the parties and signatories could not be identified due to the method of numbering in the contract. For example, the document used letters and roman numerals to identify parties, without establishing any reference point to determine which party was which. Simply inserting row numbers in your numbered list could make all the difference.
To illustrate how numbered lists can be an effective way to identify parties, consider the following structure for a joint venture agreement:
1. Party A
(a) Party A 1
(b) Party A 2
2. Party B
(a) Party B 1
(b) Party B 2
Case Study 2: Defendants in a legal action
The effective use of numbering in the plaintiff’s Statement of Claim in Smit v. General Genomics Corp. (2013), 118 O.R. (3d) 636 (Ont.S.C.J.) played an important role in enabling the Court to identify the different events alleged to have occurred against the defendants.
In Smit, the plaintiff made a claim for damages against the defendants for breach of a confidentiality agreement and conspiracy to injure him in his trade. The plaintiff outlined in detail each event in which he claimed the defendants had engaged. Instead of using letters, roman numerals or indentation to distinguish the points, the plaintiff listed the events using the following numbered list in his Statement of Claim:
- Conspiring with Party Y to falsely brand the product "Product A" as being a novel ‘invention’ of Party Y in order to engage in what the plaintiff described as a "dirty tricks campaign".
- Falsely claiming that "Product A" was a "Novel Invention" of Party Y.
- Falsifying the patent application for "Product A" by fraudulently reproducing certain invoices to modify the dates on them in order to obtain a predated priority date from the U.S. Patent Office and granting false signatures to the persons signing the invoices.
By clearly identifying the different events with simple numbers, the plaintiff was able to ensure the Court did not confuse any of the events. As the court noted, "Using letters or decimal numbers to identify the events would also have worked, but the chronological ordering and easy visual layout of the listing, in this case, aids in addressing the question of causation."
Case Study 3: Outlining facts in a motion for summary judgment
Using a numbered list to outline the facts central to your motion for summary judgement can help the reader quickly identify the complexity of the case. A clear and concise numbered list of the material facts means the reader is less likely to have any confusion in the future about which facts are and are not central to the case.
A number of courts across Canada have found that the material facts in front of them are unclear when the parties involved do not clearly identify the material facts in their brief. As a result, a Chief Justice once expressed frustration when reviewing a motion for summary judgment in Clarke v. Factory Mutual Ins. Co. (2009), 95 C.C.L.I. (4th) 360 (Ont.Sup.Ct.), saying, "It is only for my own convenience and comfort that counsel have listed facts and allegations in their written submissions."
To avoid this kind of confusion, present the material facts in chronological order, covering each critical point in the case. It can be helpful to simply number the paragraphs in your factum that overlap with the portions of the motion. For example:
FACTS
1. The plaintiff, Ms. A, entered into a contract with the defendant, Widget Inc., to purchase widgets in November 2017. Ms. A’s contract with Widget Inc. was for widgets to be delivered between December 18 and 23, 2017.
…
Conclusion: Putting Numbering Techniques into Practice
The best practices for numbering tabulated lists are deceptively simple, but they are pivotal to ensuring your legal writing is both clear and professional.
The correct placement of numbers, letters, and other list markers such as bullets or dashes is the difference between a reader being able to easily navigate your writing and having to laboriously wade through dense prose to extract each and every thought you have carefully recorded.
While it is obviously common sense, it bears repeating that the only way to determine what number or letter identifier to use in a written list that flows from a section number or period is to count carefully from the last number or letter you used.
If, for example, I have made a numbered list of paragraphs with a child subparagraph appearing beneath paragraph 2, I cannot simply guess at what number the next subparagraph should be, even if it makes logical sense to place the subparagraph under paragraph 3.
I have to count my way back up to paragraph 2 to remember what number I placed before the first paragraph , and each number that followed.
If I haven’t been particular about my numbering, I risk inserting what appears to be a subparagraph under paragraph 3, when in fact it should have been placed as a subparagraph under paragraph 2.
When drafting complicated documents or instructions, I find it helpful to show the list on a spreadsheet in order to clearly line up the letters and the numbers beneath their associated paragraphs, subparagraphs, sub-subparagraphs, etc.
Creating a spreadsheet for this process will save at least 45 minutes of frustrating work in redoing the numbering later.
As a final note, be sure you do count carefully, especially in materials that you must coordinate with other authors. Your job will be complicated not only by your own errors, but also by the inevitable mistakes of how the other writers you are working with have numbered their material.
Mastering Numbering in Legal Writing: A Guide to Tabulated Lists concludes by advising that proper presentation of lists makes legal documents easier for your readers to absorb.
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