Show respect for judges, even when they are wrong.

Referring to judges correctly and deferentially is a nonnegotiable requirement of strong legal writing.

Jul 20, 2021

Rules of legal ethics require advocates to uphold the “dignity of the tribunal” and to behave as “officers of the court.” At a minimum, this means that attorneys must treat judges with respect. Legal writers often inadvertently violate this obligation in one of several ways:

Referring to courts disrespectfully or without appropriate deference;
Berating a lower court during an appeal;
Failing to capitalize the word “Court” correctly; or
Failing to use a judge’s correct title.

Each of these blunders is discussed below.

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Refer to courts respectfully and deferentially.

Always address and refer to courts formally, respectfully, and deferentially, even when you believe they are wrong. Here are two improvable examples:

“The Court must reverse.” (It is fine to say that the court “should” do something, but not to say that it “must” do something.)
“The District Court failed to consider . . . .” (The word “failed” has a pejorative connotation.)

Refer to lower courts respectfully on appeal.

Appellants have an uphill battle because they have to convince judges to reverse their colleagues. Reversal is a public rebuke of the lower-court judge. Therefore, as Steven D. Stark put it in Writing to Win, appellate lawyers should raise their points “more in sorrow than in anger.”

Here’s an improvable example:

The district court failed even to address several aspects of the mental health system that Defendants demonstrated are constitutional—screening, mental-health-records management, medication management, and protocols for use of force and discipline concerning mentally ill inmates. . . . In the court’s mistaken view, because the State had ‘gone for the home run ball’ by seeking to terminate the whole case, it was not entitled to have the court consider the appropriateness of its control over individual aspects of the mental-health system.

Capitalize the word “court” correctly.

The word “court” should be capitalized in three circumstances:

When addressing a particular court (e.g., by writing “The Court should reverse” in an appellate brief);
When referring to the United States Supreme Court; and
When referring to the highest court in the jurisdiction whose laws govern the outcome (e.g., a state supreme court).

Here’s an example that would be incorrect if Smith v. Jones were decided by an intermediate appellate court:

In Smith v. Jones, the Court held . . . .

Use judges’ correct titles and honorifics.

Judges have to work very hard to achieve their status, and they expect to be recognized with appropriate titles and honorifics.

As noted above, when referring to the current tribunal in a filing, use “the Court.” Here are some guidelines for other situations:

When referring to a judge orally in the second person, use “Your Honor.”
When naming a judge in an envelope address,[1] use “The Honorable [Judge Full Name].”
In legal filings, when referring to judges other than the presiding judge, use “Judge [Judge Last Name]” or “Justice [Justice Last Name],” depending on the court. (Judges on the United States Supreme Court have the title “Justice,” for example.)

Referring to judges correctly and respectfully is a nonnegotiable requirement of strong legal writing.

Footnotes

[1] This rule also applies to former judicial clerks listing a clerkship on their resumé.

Ryan McCarl is a founding partner of Rushing McCarl LLP, author of Elegant Legal Writing (U. Cal. Press 2024), and adjunct professor at Loyola Law School. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available on Amazon.

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