Legal Writing Basics: The Role of Numbers
In legal writing, using numbers correctly is crucial for the clarity of any document and the precision of the meaning conveyed. As such an integral part of legal writing, it is also important for legal writing style, which requires every effort to be made to do it right . There are formal rules to follow for writing numbers (and others related to them, such as money and dates – which are treated elsewhere). Although there are many places in legal writing where numbers do not have to be used (most notably in small numbers), it is helpful to know the rules for using them properly.
When to Use Written Numbers
When writing legal documents such as briefs, motions, complaints, and appellate briefs, there are certain conventions for when to spell out numbers. The convention for the vast majority of pleading and brief writing in the federal courts is to not write out numbers below ten. There is an exception to this; the U.S. Supreme Court Manual says that numbers less than 10 should be spelled out if they are at the beginning of a sentence. So if you are in the practice of writing in the Supreme Court, be mindful when you start a sentence with a number under ten.
In the US Court of Appeals and District Courts, however, you must be careful not to spell out a number at the beginning of a sentence. The sheer number of times it may be necessary to avoid a spelling-out mistake at the beginning of a sentence is a persuasive reason to not use that style anyplace else.
The Federal Rules of Appellate Procedure (Rule 32.1(a)(4)) state that numbers must be used for all numerals higher than the word "ten." This rule does not extend to numbers in citations, which can be spelled out as per rule 32.1(a)(6) of the Federal Rules of Appellate Procedure.
The 7th Circuit recommends spelling out numbers from one through nine and using digits for 10 and higher. Numbers at the beginning of a sentence must always be spelled out. The 8th Circuit also recommends spelling numbers one through nine out and using numbers for 10 and above, but requires numbers at the beginning of a sentence to be spelled out.
In the 5th Circuit, numbers up to nine are spelled out and 10 and above as numerals, but they must be spelled out when used at the beginning of a sentence. Numbers must be spelled out in motions and injunctions in the 11th Circuit and the Eleventh Circuit follows the same pattern for capitalizing and spelling out numbers as numbers 5th, 6th and 7th Circuits.
The 2nd Circuit recommends using numbers for all numerals and spelled-out words only in the rare circumstances when digitals become hard to read, such as in a footnote. But the 3rd and 4th circuits follow 2nd Circuit convention. In the 1st Circuit, the convention turns back to that of the 2nd. The 9th and 10th Circuits recommend using numbers for all numerals unless numbers would be much easier to read, such as in a series of numbers.
The Use of Digits in Legal Writing
Numerals are typically preferred for expressing numbers. Here are some common exceptions: If a number is the first word of a sentence, in which case spell out the number. Spell out numbers that represent parts of a whole: one-seventh, two-thirds, three-fifths, and so on. Express numbers in a series in numerical form, even if it is the first number. In a legal document, always express court dates using numerals and Arabic numerals for all elements of the date – 9-3-2020, for example. When there are two adjacent numerals and one must be spelled out, spell out the smaller number. Numbers for currency, including cents, are usually expressed as numerals, even at the beginning of a sentence. Use numerals for money amounts even when used with a preposition. Use numerals for percentages.
Avoiding Confusion Through Correct Numbering
Ambiguity lurks around every corner in legal drafting. The number you use—any number you use—must be precise enough to avoid misunderstanding easily or losing thousands of dollars in a court case involving numbers.
Take a look at the following clauses, each of which provides for a payment equal to "125% of the Fair Market Value of the Company Shares." Which does your red pen find ambiguous?
A 125% option
An option to acquire shares equal to 125% of the number of shares subject to the option
A 125% per share option
An option to acquire shares equal to 125% of the fair market value of the shares subject to the option at the time of exercise
A 125% payment
A payment equal to 125% of the value of the Company determined as the fair market value of the Company as of the time of the payment as determined by taking into account certain factors
A 125% dollar amount
A dollar amount equal to 125% of the number of shares of the Company paid out in cash, but only if such amount is in excess of $2,500
These clauses use the same basic concept in slightly different ways, which means that they could all mean something different. One could interpret each clause to provide for a different number of dollars—or even different payment terms or conditions in one case—than another clause. If you insert one of these clauses in a contract or other agreement without modifying the language to make it fit the rest of the document, you can easily imagine the chaos that would ensue.
Such legal drafts are sloppy and ambiguous. Such ambiguity imposes greater expense on lawyers and their clients or companies. Judges and other lawyers love it when you make their jobs easier. Clearly defined numbers in a contract can also minimize the risk of dispute. A party is less likely to waste valuable time and money fighting over an amount when the amount is clear. A large majority of lawyers do not understand how to use numbers in contracts. Unlike words, which most lawyers have a good working knowledge of, numbers are often difficult for lawyers to comprehend. Such misunderstandings may lead to ambiguity, which creates chaos.
Common Pitfalls and Tips to Avoid Them
Mistakes are part of the learning process. But a legal document is not the best place to learn from your mistakes. Here are some common mistakes to look for when writing.
- Avoid incorrect contractions. "It’s" means "it is" and there isn’t an apostrophe in "its."
- In general, as a rule, an "s" is not used with a number when the number does not represent a quantity of one. 1.5 million is presumably not 1.5 millions. 1/2 of 1 percent is presumably not 1/2 of 1 percents.
- This is theoretical, but I’ve noticed that free will-less words (foregone conclusion, moot point, all of the sudden, etc.) seem to be more prevalent when the writer has purposefully used "number" instead of a number.
- Most commonly, numbers are misused when they get into math. Here are some examples you should try to avoid in your legal writing:
- When to use the word "equal to": I see equal to being written as equal to when it shouldn’t be (for example, 1+1 is equal to 2), and not being written as equal to, when it should be. It’s a short phrase. Use it only when you must: When you’re attempting to clarify the operation in a string of numbers.
Examples:
- 1+1 = 2
- 1 + 1 = 2
- 0.5 + 0.5 = 1
- 7 x 7 = 49
- Sometimes when you’re referring to something and don’t need a number , a number seems to creep into your writing. For example, if you’re writing about the order of the paragraphs in your case law, but you’re not using a number as a word during that discussion, a number should be spelled out. Here are some examples:
- In In re Mooney, 45 B.R. 526 (Bankr. S.D. Iowa 1985), the court held that the holder of a note secured by real property was not entitled to attorney’s fees.
- The Mooney court found that the facts were distinguishable from those in In re Hader, 42 B.R. 129 (Bankr. N.D. Ga. 1984) and Lorelei B. Hader v. Thomas D. Hader, 749 S.W.2d 871 (Tex. App. 1986, no writ).
- Again, sometimes a number like this one just jumps out at you, even when it shouldn’t be there. Bits of information like this one are very specific and shouldn’t be included unless you’re certain of their authenticity.
- For example: 2/3 of the pills in a bottle.
- 30 degrees in a 70-degree room.
- 5 gallons of baking soda purchased.
These are a few instances I commonly notice when I pass over a legal document. I hope these tips help you avoid them.
Best Practices for Legal Drafting
When it comes to incorporating numbers into legal writing, there are some straightforward rules to follow.
• Generally, numbers from zero to nine are written out-e.g., "nine acres." Numerals are used for all numbers 10 and over, and for all amounts of money-e.g., "2 million acres."
• Numbers referring to exact times are always written as numerals-e.g., "5:45 a.m."
• Always write out numbers used at the start of a sentence, as well as such numbers that have words embedded in them-e.g., "Seventy-two percent of the clients we’ve contacted prefer Tuesday for their court date."
• When two or more whole numbers appear in succession, use numerals for all-e.g., "the 10 25-foot boats."
• Percentages and fractions always use numerals-e.g., "57 percent" and "86 percent."
• $5.50 should be used as opposed to "five dollars and fifty cents."
• Go easy on exponents. The rule is to use them only on first reference in a legal document. The exponent must accompany the number. Consistent use of exponents helps the judge or opposing counsel follow the math-e.g., x^3 is easier to understand than "x cubed."
• When using ranges of numbers (from one to five, etc.), use a hyphen to connect the two digits-e.g., "from two to five."
• For scales or rankings, instead of using one, two and three, use 1-3-e.g., "1-3."
• Special characters can be of assistance, especially if you have to use them repeatedly. For example, you could use 1* to indicate one through 10, 11-20, and 21-30, or A-B-C-D, and so forth.
There are numerous tools legal writers can employ to speed the process of maintaining accuracy while adding ease to the editing process.
• Use styles. There is an entire library of styles to choose from in Microsoft Word. From color-coded characters to bullets, numbering, and indentation, you can turn an outline on its head or add requirements and styles that must be followed.
• Use the find-and-replace function to ensure that the letter "S" disappears from all instances of the word "clerk" (if you’re changing "Clerk" to "Registrar"). Make sure that all occurrences of "Clerk" are changed, but not other words that happen to contain "clerk" within them-e.g., "clerk-ship." This is also a great way to find typos in names, e.g., "Diana Day-Gill" instead of "Diane Day-Gill." In fact, take full advantage of the find-and-replace feature. You could change every "Clerk" to "Registrar" and find out if your spell-check function is picking up on the changes.
• Have a friend check your work. Often, you’ll miss mistakes that your partner catches, and vice versa. Frankly, having someone else go over your work is the cheapest insurance policy to make sure you aren’t embarrassed later on. Don’t assume your own eyes are OK, or that your partner will catch your mistakes. And don’t overlook the simplest mistakes when doing it yourself. They can be the most embarrassing.
• Give yourself lots of time to proof the work. If you need to, redesign your timeline to allow as much time as you need.
Case Studies: On How Not To Use Numbers in Legal Writing
In 2016, an Alabama attorney was stung when his client accidentally stated an incorrect amount of damages in a federal court. The client presented a calculation sheet showing damages of $372,054.69, but then erroneously included $372,000 in damages on a separate tax form, for a total of $744,054.69. Neither party presented evidence to explain or support the error; no one demurred; and, thus, no one caught the error until after the verdict was returned. The court vacated a $12 million verdict and the case was retried.
We all know making a simple mathematical error in an evidentiary submission and then introducing it at trial is a bad idea. Failure to properly analyze numbers before including them in court documents can literally ruin a case.
Mathematical errors are not the only pitfalls of using numbers that can befall attorneys. For example, in State v. Walden, No. E2018-0138-CCA-R3-CO (Tenn. Crim. App. Nov. 8, 2018), the defendant was convicted of aggravated assault based on the testimony of a victim who said during his preliminary hearing that he had "almost $100" in damages. At trial, the victim testified that he had incurred "exactly $100" in damages. On appeal, the defendant argued that the victim’s testimony conflicted because "almost $100" and "exactly $100" were not the same thing. The court held that "almost" fell well within the range of "exactly," so there was no conflict. Nonetheless, the appellate court commented that the number should have been scrapped as having no actual evidentiary value. Id. at 6.
Misdrafting the numbers and omitting them from a complaint can also be problematic. In Ahern Rentals, Inc., v. EquipmentShare.com, Inc., No. 16-2603, 2017 WL 4927599, at *1 (D. Kan. Oct. 31, 2017), the defendant in a trademark dispute misdrafted its original counterclaim, asserting that it had lost sales "approximately $230,000 per month in lost revenue," when it intended to state "approximately $230,000 per month in lost revenue." The court, accepting the defendant’s wording as true, found that lost revenue of $230,000 per month (taking the plaintiff’s allegations as true) would equate to $2,760,000 in lost revenue over two years. That inflated figure was enough to satisfy the amount-in-controversy requirement. As a result, the defendant was able to maintain its case in federal court. Id.
Sometimes, the simple use of numbers can completely derail a good case, as shown in Whitehead v. B2 Marine, No. 2:13-cv-155 (S.D. Ga. July 31, 2015). In that case, the plaintiff demanded $37,096 as compensation for the loss of a vessel, but then alleged on a separate form—as part of the closing forms relating to the sale of the vessel—that he signed the boat over to the purchaser for "$25,000." The Southern District of Georgia ultimately dismissed the plaintiff’s fraudulent inducement claims because the amount stated on the offer of purchase was below the $75,000 jurisdictional threshold for admiralty jurisdiction.
Similar to Ahern Rentals, In re Duque, No. 2:18-cv-2396, at *5 (D. Nev. August 6, 2018), rejected the plaintiff’s joins motion to remand in which it statewide that a lawsuit was filed in California for "[a]n amount between $5,000 and $10,000." However, the complaint also alleged that defendant’s wrongful conduct resulted in "[a]staggering loss of at least $1,675,000.00" in warehouse revenues. The district court concluded that, despite the statement of damages sought being below the amount-in-controversy requirement, the complaint as written asserted damages exceeding $75,000. That was enough to establish federal jurisdiction.
These cases highlight the importance of drafting language accurately wherever numbers are involved—from calculating damages to stating loss of revenue to even drafting an offer to purchase. Staying focused and diligent is critical not only when dealing with numbers but at all stages of the case, from initial pleadings to closing arguments.
The Direction of Numbers in Legal Writing
The use of numbers in legal writing may be on the verge of another major transformation. For centuries, the distinction between letters and numbers was of paramount importance, but as more of us rely on tools – many of them embedded with Artificial Intelligence – a much more useful distinction will be between "what do I mean?" and "what do I mean to say?"
Some tools help us, like Microsoft Still Writer, which can reformat documents and automatically convert numbers into numerals (and vice versa) when changing fonts.
Others will work behind the scenes until a document is produced: Turns out many federal courts use software that replaces Roman numeral paragraph designations with Arabic numbers when a document is printed or converted to PDF.
Notably, federal courts are also beginning to use AI-driven legal drafting software, which will change the way we interact with our outlining numbers in other significant ways.
For trusts and estates practitioners, the potential impact is profound: Drafting appropriate Disclaimers and Avoidance Trusts will be much easier, when software can track how a client’s assets have changed from year to year. While the following sentence about sec. 2518 elections may not seem that complicated, it makes drafting minor changes to that provision (essentially distributive deadlines) potentially far more complex than necessary:
"If a Disqualified Person makes a Partial Disclaim, such partial Disclaim will not be treated as a Disclaim of part of the property described in subheading (1) above unless and to the extent that such Partial Disclaim identifies the portion of the property described in subheading (1) above to which such Partial Disclaim applies (such as by referring to "$1,000,000" or "5 %") . "
It will no longer be necessary to convert between "1%" and "one percent" as you draft, because your software can do that for you with a simple click.
More complex statutory references will also be possible, for instance tracking subsection differences for Trustee compensation:
"The compensation of any trustee (other than a bank or other financial institution) shall be fixed by the court; or if so provided by the governing instrument establishing the trust, the amount of the fee shall be calculated according to the following formula:
(Sum of (a), (b), and (c)), multiplied times a percentage to be determined as follows:
For the fiscal year for which fees are being determined (the "current year"), (1) if the current year is one of the first ten fiscal years of the trust, the percentage shall be .75%; or (2) if the current year is one of the following five fiscal years, the percentage shall be .5%; or (3) if the current year is one of the three fiscal years after the tenth year but six or less fiscal years before the term of the trust is to expire, the percentage shall be .25%. For any fiscal year thereafter, the percentage shall be .125%."
Now, as more of us add new capabilities that let the computer do much of the cognitive heavy lifting, we can focus on what we mean, and choose the words that best express it.