Words, Conventions and Other Usages (6/16/25)

The purpose of this web page is to identify certain words, conventions and other usages that I use in my Federal Tax Procedure book. Bryan Garner’s article, Bryan A. Garner, Pesky Problems of Legal Style, 111 ABA Journal 20 (June/July 2025), inspired me to create this page. I focus on items that federal tax controversy attorneys and fans may encounter from time to time. I plan to start the blog page with examples from Garner’s article and then add to it periodically over time with other examples as I encounter them. I present the items in alphabetical order, so that the items from Garner’s article will over time be mixed in according to alphabetical order.

As a further introduction, I quote Garner’s conclusion to his article:

           Why should we care about this stuff? Because the law is essentially a literary profession. And professional writers over the years have worked out hundreds of sensible conventions that enhance both clarity and credibility. Those are the principles—conventions, really—that [Professor Charles Alan] Wright [Wikipedia here] said most lawyers don’t understand. He was really suggesting an opportunity that each one of us has to stand out positively from the crowd. 

Attorney’s Fees vs Attorneys’ Fees vs. Attorney Fees	Garner offers:            Another perennial problem is attorney’s fees vs. attorneys’ fees vs. attorney fees. (The form attorneys fees is an abomination not in contention.) The Civil Rights Attorney’s Fee Awards Act, 42 USC § 1988, uses the singular. For some legal stylists, that answers the issue conclusively: Follow the statute. Others, though, are more literal-minded: They say that if more than one attorney is involved, it should obviously be attorneys’ fees in that particular case. Whichever form you choose, you’d want to be consistent within a piece of writing.           But if you choose the plural possessive (attorneys’ fees), you might get caught in Justice Stevens’ marijuana/marihuana bind if you must also refer to the Attorney’s Fee Act.           Personally, I’ve come to prefer the simple form attorney fees, which obviates the apostrophe problem. I first recommended this form in The Redbook: A Manual on Legal Style (5th ed. 2023). Attorney fees became the slightly predominant form in English-language publications during the first decade of this century. (The three forms are about equally common today.) Attorney fees has another advantage: It’s more comfortably hyphenated if you’re referring to an attorney-fee dispute, an attorney-fee schedule, etc.           Nobody wants to write attorney’s-fee schedule or attorneys’-fee schedule. Yet this is one of the principles of English usage: Phrasal adjectives are to be hyphenated. The lawyer who doesn’t understand this principle is likely to write attorney’s fee schedule or attorneys’ fee schedule without the hyphen. That’s the kind of thing Professor Wright was referring to when he said lawyers don’t understand the principles of English usage. JAT Comment: The principal attorney fee awards provision for tax litigation is § 7430, here. The provision often eliminates this tough choice by such usages as “reasonable fees paid or incurred for the services of attorneys in connection with the court proceeding.” § 7430(c)(1). But, when § 7430 has to make a choice between the conventional uses, it chooses “attorneys’ fees.” § 7430(c)(3). Nevertheless, I will try to use Garner’s preference—attorneys fees—in the book and, as of mid-June 2025, have conformed the 2025 working draft (to be published in August 2025) to that preference.
District Court or district court (the initial capitalization issue)	Garner offers: On points of capitalization, the Supreme Court is virtually unanimous in following its house style. Have you noticed that the court consistently refers to a district court (a general reference) but the District Court (a specific reference). JAT Comment: I don’t doubt that I have not been consistent on this weight issue. I don’t know whether I will have the time and energy to make the Federal Tax Procedure book consistent with this convention and will not attempt to make past blog posts consistent with it. I will try to make future changes to the Federal Tax Procedure Book and future blog entries consistent with the convention.
Shorthand Case References	Garner offers:           One excellent practice of the court contradicts a particularly annoying practice that lawyers often follow—using a parenthetical shorthand even when it’s not remotely necessary. There’s no reason to write Petitioner Herman Gundy (“Gundy”) or, worse, Petitioner Herman Gundy (hereinafter “Gundy”). He is, after all, the only Gundy within miles of the case. There’s typically no justification for the parenthetical that so many lawyers pedantically insert. It’s as if they assume their readers haven’t the slightest intelligence.           The Supreme Court generally rejects this knee-jerk habit. That’s why, for example, Justice Kagan wrote an opinion in Gundy v. United States (2019) in which Petitioner Herman Gundy is introduced, and then Gundy is referred to after that, just as in good journalism. Nobody thinks some other unannounced Gundy has suddenly popped into the opinion.           Only when things get complicated can parenthetically announced labels serve a real purpose. JAT Comment: My practice is to sometimes (maybe not a practice because it is sometimes) is to use a party name as a shorthand, e.g., Frank Lyon as shorthand for Frank Lyon Co. v. United States, 435 U.S. 561 (1978) (which, parenthetically, is one of the worst Supreme Court tax opinions). Where I refer to the individual, I do not italicize (the italics being the clue that I am referring to a case)—e.g., Frank Lyon or just Lyon (who featured in Frank Lyon as the owner of Frank Lyon Co.).
Subpoena or Subpena?	Garner offers: Many federal statutes use the spelling subpena despite the longtime predominance of subpoena. That’s because for most of the 20th century, the GPO Style Manual (issued by the Government Publishing Office) long prescribed subpena as the spelling. But all the 21st-century versions of the manual, fortunately, give preference to the usual spelling: subpoena. JAT Comment: An example of the use of “subpena” is in 5 U.S. Code § 304 - Subpenas, here. Garner’s explanation mentions the GPO Style Manual as perhaps the reason for Congress using “subpena” in older statutes. Garner also notes that, on another issue (the possessive of “Congress”—Congress’s and Congress’), Supreme Court Justices are split on following the GPO Style Manual (Congress’) and the Chicago Manual of Style (Congress’s). (I admit that I rarely consult either source (but, full disclosure, between them, I consult the Chicago Manual of Style more often).)
Supreme Court U.S. Citations	JAT Comment: Supreme Court opinions come out in three formats: •Slip Opinions. Supreme Court opinions come out first in pdf format. The webpage for Slip Opinions is here. The Slip Opinion is official, but it is not the official U.S. citation except that the Slip Opinion will cite the volume of the official U.S. reporter that, when published, will have the opinion. The local page citation for the U.S. is not given in the Slip Opinion. Accordingly, to cite to the Slip Opinion, the correct citation for a local page is some variant of Slip. Op. 9 (referring to the 10th page of the Slip Opinion. For example, a recent opinion cited in the August 2025 editions of the book will be as follows: Commissioner v. Zuch, 605 U. S. ____, ___ S.Ct. ___ (2025) [Slip Op. 5 n. 1 and 6]. • Preliminary Prints. The next step offers Preliminary Prints in pdf where the Opinion has both the volume number and the expected U.S. reports local page numbers. The Preliminary Prints prepared some time after the Slip Opinions are offered on the same site here. • U.S. Reports. These are the official bound reports and available on the same Supreme Court website here. These become available long after the Preliminary Prints. So far as I am aware, the U.S. Reports are not subject to change. Caveat: Before the permanent U.S. Reports are published, the opinions are subject to change (which might affect both content and conceivably also page numbering). Changes are not common, and in my limited anecdotal review are relatively minor (thus not affecting the local page numbers assigned in the Preliminary Prints). Changes are noted in the Supreme Court web page titled Opinions of the Court – [Year]. For example, “Opinions of the Court – 2024” are here with the following indication of change: An Aside: the Tax Court “T.C.” opinions are also subject to change before the published T.C. volume is produced long after the original T.C. Slip Opinion. The Tax Court offers no notice of the changes such as the Supreme Court offers. I have “suggested” to the Tax Court that notice of changes be provided. My Suggestions to Tax Court on Procedure Related Matters (Federal Tax Procedure Blog 11/23/20), here. However, when citing or quoting T.C. opinions using only the original Slip Opinions, one should double check with the final published T.C. opinions and the preliminary Pamphlets here.