A Quick Note on Conspicuous Text, also known as ALL CAPS

Posted on by Luis Villa

[Quick followup: (1) Matthew Butterick, of Typography for Lawyers fame, has added a thoughtful comment that anyone reading the post should read; and (2) to be clear, nothing here is my original work or thought – it’s all a convenient, collect-in-one-place paraphrase of ideas from the excellent Manual of Style for Contract Drafting and Typography for Lawyers, both of which should be on the desk of every corporate lawyer.]

Anil Dash asked about ALL CAPS Friday, and then someone in my (very fun) letterpress class at the San Francisco Center for the Book asked me a related question. So here is a quick post on the lovely subject of ALL CAPS.

A copy of the MPL with yellow text instead of ALL CAPS.

The basic question: Why do lawyers use so much ALL CAPS and what can a normal human being do about it?

Some laws require that text in a form or contract be “conspicuous” – i.e., that they be made harder to miss. The most common example of this, in the US, are requirements that disclaimers of warranty1 be conspicuous, so that consumers don’t miss them. You’ve all seen these blocks, and most of you have skipped over them. In the US, the law that requires conspicuous text for warranty disclaimers is typically a descendant of the Uniform Commercial Code (“UCC”) § 2-316.2 Practically speaking, this kind of requirement makes sense – it highlights areas that legislators have decided are particularly important and so can’t be hidden in the nooks and crannies of a document.

Unfortunately, historically, the only easy way for lawyers to make text “conspicuous” on a typewriter was ALL CAPS. Unfortunately, at some point along the way, many lawyers confused the technology (typewriters) for what was actually legally required. And so this is where we stand now – many lawyers will insist that ALL CAPS are required, when they really aren’t.

So if not ALL CAPS, what actuallyisrequired? This varies from rule to rule, unfortunately. But in the UCC, conspicuous is defined as text a reasonable person “ought to have noticed”, which includes:

“(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and

(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.”

(From UCC 1-201(b)(10); same text also appears in UCC 2-103(1)(b)(i).)

The Mozilla Public License, which I recently led the revision of, uses two different approaches, both supported by the UCC’s definition of conspicuous text. In our HTML version, we use text “in contrasting … color to the surrounding text of the same size” – i.e., we color it yellow. (When printed, this comes out as a box around the text.) In our plain text version, we use text “set off … by symbols .. that call attention to the language.” In other words, we use hyphens and vertical bars (|) to draw a box around the text.

So that’s the bottom line answer: in many cases (and certainly in the most common use case by American commercial lawyers), ALL CAPS isn’t required; instead, something “conspicuous” is – which could mean using symbols, colors, font size, or any number of other typographical tricks to make things both visible and easier to read.

Is This Always The Case?

Unfortunately, while most American statutes in this area appear to follow the UCC and require “conspicuous” text, defined quite broadly, this isn’t always true. An interesting list of such exceptions is in the comments to this blog post. These are exceptions; not the rule, but lawyers should be aware of them. Many of the exceptions, interestingly, are where writers of rules have included text that must be included precisely in a form or contract, and the rule-writers have INCLUDED TEXT THAT IS ALL CAPS in their draft text. That is often bad form – but it’s important to follow the rules in such cases.

Citations That Are More Authoritative Than This Blog Post

You’re saying “this is all very interesting, Luis, but I can’t give your random blog post to my lawyer next time he tells me that my Terms of Use need ALL CAPS.” Well, here are what lawyers consider the best kind of citation – a citation to printed books with page numbers, one of them even a publication of the American Bar Association.

“A Manual of Style for Contract Drafting,” Ken Adams, at 15.32-15.41.

“Typography for Lawyers,” Matthew Butterick, at 86-89.

Each of these say (often with more style and detail than I’ve said here) basically the same thing – use ALL CAPS sparingly, if at all. To get a flavor for each of them without buying the books (though I think every commercial lawyer should have both of these books on their desks) the authors have each blogged on these subjects: Adams’ blog post is here and Butterick’s is here.

So Why Do Lawyers Still Use ALL CAPS?

Because we’re risk-averse. Until judges, legislators or our clients demand that we change, we will stick with what works (or perhaps more accurately in this case, we will stick with that hasn’t yet failed).

There are the occasional signs that judges are starting to wake up to the issue: In re Bassett, 285 F.3d 882 (9th Cir. 2002) says “Lawyers who think their caps lock keys are instant “make conspicuous” buttons are deluded”; Stevenson v. TRW, Inc., 987 F.2d 288 (5th Cir. 1993) endorses use of bold or larger type rather than ALL CAPS; and  California courts have even held that ALL CAPS text in an inconspicuous location in the document may not be conspicuous even though it is in ALL CAPS. Broberg v. Guardian Life Ins. Co. of America, 171 Cal. App. 4th 912, 922 (2009).

The judicial situation is helpful, but realistically, until more clients demand it, it’s not going to change. So here you go. :)

 

  1. i.e., the part where the contract says “this product I’m selling you could well be broken or unusable, and that isn’t my problem” [↩]
  2. The UCC is a ‘model code’ – basically, states copy the UCC, edit it as they see fit, and then use that for their own commercial code. e.g., UCC 2-316, in California, becomes California Commercial Code 2316, with similar but not necessarily identical text. [↩]

Published by Luis Villa

32 thoughts on “A Quick Note on Conspicuous Text, also known as ALL CAPS”

  1. “So Why Do Lawyers Still Use ALL CAPS? … Because we’re risk-averse. Until judges, legislators or our clients demand that we change, we will stick with what works (or perhaps more accurately in this case, we will stick with that hasn’t yet failed).”

    You’re on the right track, though too often, when lawyers say they’re being “risk-averse,” they’re merely putting a halo on laziness. The overuse of ALL CAPS is one small part of the larger culture of cargo-cult lawyering — i.e., blind reliance on the work of other lawyers as a substitute for independent research & judgment.

    It’s one thing when cargo-cult lawyering leads to widespread overuse of 12-point Times New Roman — at least that’s substantively benign. But when it leads to lawyers assuming that ALL CAPS satisfies laws requiring conspicuous text — that’s troubling, because now clients are at risk (as the Broberg defendants found out the hard way).

    As for requiring “judges, legislators, or our clients” to demand change, haven’t they already? By adopting the UCC, legislators have enacted laws that explicitly say that ALL CAPS are not a panacea. The few judges that have considered these issues have likewise warned against blind reliance on ALL CAPS. (I hope no one’s holding out for a US Supreme Court opinion.)

    And as for clients — we lawyers already have a duty not to rely on ignorant shortcuts that put our clients at risk. The average client would doubtless be surprised to hear that after hiring a lawyer, they must still actively agitate to get that lawyer to, you know, do the job. The problem with the principle of “shortcuts are OK until clients tell us otherwise” is that it creates a justification for doing as little as possible, illuminating a spiral staircase toward the basement.

  4. Because the US law system is sick. It has no relation between a cause and the damage. So you must not forget anything in the boilerplate unless you won’t get sued for a fortune.

  5. Luis: Thanks for this clear and comprehensive summary. I might have been one of the sources for your information, but I still learned some things from it. Ken

  6. Luis and Matthew: To follow up on my Twitter exchange with Luis, the term “cargo-cult lawyering” does have a nice zing to it, but I’m not sure how helpful it is as a metaphor. Cargo cults appeared in tribal societies after interaction with technologically advanced cultures. Lawyers following precedent aren’t aping a more advanced group of lawyers. Instead, they’re just regurgitating the work of their peers. That’s why I just say “slavishly adhering to precedent,” or some such. Ken

  7. Ken: “cargo cult” goes beyond risk-averse to cover the situation where things are done even though the person doing it doesn’t actually understand why it has the intended effect. In other words, it is the difference between “the UCC requires ‘conspicuous’ text, and ALL CAPS is a time-tested way of providing that” (risk averse) and “every form in my forms folder uses ALL CAPS, and I couldn’t tell you why, but I’ll keep doing it” (cargo cult). That said, I appreciate your intent (from this comment and your most recent post) to reduce the snark level, and would welcome another, less judgmental term, if either of you have one.

    Matt: I don’t think judges are demanding change. They’re certainly saying that in some, fairly unusual, circumstances ALL CAPS is not enough. That only says that in some circumstances you need to take other steps; they’re not saying that ALL CAPS is actively a problem. They could be doing that if they wanted to, since many of the relevant statutes require clear and conspicuous notices, and ALL CAPS is provably slower to read – aka less clear.

    And I’ve certainly never had a client complain to my face about it. (In fact, I rarely have complaints complain about readability at all, which I’d like to think is a sign of my skill but more realistically is a learned helplessness in the face of bad legal drafting.)

    That said, your underlying point is right – lawyers need to be taking responsibility for this too.

  8. […] on Twitter how many apps people have connected to their accounts. And in a much more servicey vein, Luis Villa offers a detailed explanation of why legal contracts still use ALL CAPS for many clauses, which I had wondered about last […]

  10. I find Mozilla’s use of the em element for highlighting entire paragraphs dubious. They’re using it as quasi block-level, when it’s supposed to be inline. With this stylesheet, marking up a single word with em would result in it being floated and separated from the surrounding text. Apart from that, the HTML5 spec says “The em element also isn’t intended to convey importance; for that purpose, the strong element is more appropriate.”

  19. […] Nach mal in Ergänzung zu #14: Der Uniform Commercial Code fordert an mehreren Stellen, dass bestimmte Klauseln "Conspicuous" sein müssen. Die Definition von "Conspicuous" enthält u.a.: "Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language."Das bedeutet zwar nicht zwingend, dass die Klausel in Großbuchstaben stehen muss, aber doch in der Schrift vom Gesamttext abgehoben. Wie schon Me(GB) schreibt, geht es dabei v.a. um Haftungsausschluss. In dem beigefügten Blog wird angesprochen, dass nicht zwingend Großbuchstaben gefordert sind. Es gibt allerdings eine Reihe von Kommentaren, die Beispiele aus dem State Law anführen, dass zum Teil Großbuchstaben vorschreibt. http://www.adamsdrafting.com/all-capitals/http://tieguy.org/blog/2012/08/19/a-quick-note-on-conspicuous-text-also-known-as… […]

  24. […] Companies can (and do) claim that they are trying to “emphasize” the important stuff by putting it in all caps. This is actually the reason so many legal documents and contracts have sections that seem to be shouting. You can blame U.S. law for this one (specifically, the Uniform Commercial Code) which requires that certain sections of a contract be “conspicuous.” […]

  25. […] Companies can (and do) claim that they are trying to “emphasize” the important stuff by putting it in all caps. This is actually the reason so many legal documents and contracts have sections that seem to be shouting. You can blame U.S. law for this one (specifically, the Uniform Commercial Code) which requires that certain sections of a contract be "conspicuous.” […]

  26. […] Companies can (and do) claim that they are trying to “emphasize” the important stuff by putting it in all caps. This is actually the reason so many legal documents and contracts have sections that seem to be shouting. You can blame U.S. law for this one (specifically the Uniform Commercial Code) which requires that certain sections of a contract be “conspicuous.” […]

  27. […] Companies can (and do) claim that they are trying to “emphasize” the important stuff by putting it in all caps. This is actually the reason so many legal documents and contracts have sections that seem to be shouting. You can blame U.S. law for this one (specifically, the Uniform Commercial Code) which requires that certain sections of a contract be “conspicuous.” […]

  29. […] Companies can (and do) claim that they are trying to “emphasize” the important stuff by putting it in all caps. This is actually the reason so many legal documents and contracts have sections that seem to be shouting. You can blame U.S. law for this one (specifically, the Uniform Commercial Code) which requires that certain sections of a contract be “conspicuous.” […]

  32. […] Companies can (and do) claim that they are trying to “emphasize” the important stuff by putting it in all caps. This is actually the reason so many legal documents and contracts have sections that seem to be shouting. You can blame U.S. law for this one (specifically, the Uniform Commercial Code) which requires that certain sections of a contract be “conspicuous.” […]

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