One of my regular daily reads is the prosecution-oriented blog Crime and Consequences. This recent post reminded me of an issue I struggled with in practice, and which many readers of this blog likely confront on a daily basis — how to refer to the defendant, the victim, and other participants in a criminal case. Here’s the relevant portion of the post:
The . . . Supreme Court has sent the cases of two Arizona murderers, Danny Jones and Edward Schad, back to the Ninth Circuit to do over in light of [another recent Supreme Court decision]. [The] cases involve claims that the defendant’s trial lawyer did not do a good enough job in the penalty phase of the case. Attacks on the guilt determination have been uniformly rejected.
In the Jones case, Judge Sidney Thomas adds annoyance to error by consistently referring to the murderer as “Danny.” His precious “Danny” murdered three people including an elderly woman and a 7-year-old girl. Judge Thomas refers to the elderly woman, Katherine Gumina, as “Gumina,” not Mrs. Gumina or even Ms. Gumina, but the murderer is “Danny.”
The Ninth Circuit’s opinion in Jones is here. The persistent use of “Danny” really stands out, and it isn’t justified by, for example, the involvement of multiple people with the same surname in the case. To me, it seems inappropriate — too casual — for a court to refer to an adult defendant in a serious case by his first name.
But what about advocates? Do defense lawyers gain points by calling their clients “Steve”? Or is “Mr. Smith” better? Just “Smith”? “Defendant”? Bryan Garner’s Legal Writing in Plain English argues that you should “avoid legal labels [like “defendant”] as party names.” This IDS training handout likewise suggests “[r]efer[ring] to your client by his . . . name” as a way of humanizing him. Neither explicitly addresses the use of first names, but both use last names as examples. Alan Dworsky’s The Little Book on Legal Writing advises that “[r]eferring to your client by first name alone will usually be stretching the humanizing tactic too far. It can backfire if it looks like an obvious play for sympathy.”
I tended to err on the side of formality and call my clients “Mr. Smith,” but I’m sure I didn’t always do that. I probably used “Smith” sometimes, and “Defendant” too often. And if my client was particularly young, or if, for some reason, I were writing about his childhood, I suspect I used his first name. If I were writing briefs for the state, I’d probably go with “Smith,” avoiding the honorific “Mr. Smith” but also avoiding the dull “Defendant.” On either side, I’d refer to victims and witnesses with at least the level of formality I used with the defendant.
What say you, practitioners? What do you do, and why? Anyone care to take up for Judge Thomas?
