Why Use Tabulated Lists in Legal Writing
A tabulated list is essentially items in a series that are grouped together in either a numbered list or in a bulleted list. Ordinarily, tabulated lists are used to present information in an orderly manner and to break the information into digestible portions. They can be used for definitions, criteria, exclusions, payment information, requirements, exceptions, returns, limitations, warranties, remedies, obligations, rights, taxes, liabilities, indemnification, or other categories. Because of their structured format, they assist in organizing complicated material, which can be an enormous benefit for the reader. Tabulated lists are also helpful in drafting agreements, because they allow you to break down the terms of a deal into smaller bite-sized portions. For example, to illustrate how tabulated lists are organized in a typical agreement, most contracts begin with numbered sections (e.g., 1.0, 2.0, 3.0, etc.), then subsections of the sections with letters (e.g., 1.1.1, 1.1.2, 1.1.3, etc.), and in turn, with each subsection, individual numbered paragraphs (e.g., 1.1.1.1, 1.1.1.2, 1.1.1.3, etc.) . However, as section and subsection numbers increase, and the number of subparagraphs multiply, it becomes necessary to incorporate tabulated lists so you don’t have to number or letter each subsection and subparagraph. Therefore, one of the more common ways of using tabulated lists is to include bullet points (that are not numbered) in sections that might otherwise be numbered. For example, sections of a contract might contain words or phrases that require definitions, and rather than number them all, you can use bullet points to organize these definitions. Lists can also be incorporated to demonstrate an exception to a defined term, or to enumerate elements that may be limited or excluded from a specific section of an agreement.
As we will see later on, when tabulated lists are used in conjunction with words or phrases that require an explanation, definitions or other references may be required elsewhere in the document to explain the meaning of the tabulated list. We will also review some common pitfalls of tabulated lists, when a sloppy tabulated list can cause confusion, "windfall results," or unreasonable interpretations.
The Advantages of Tabulated Lists
The benefits of using tabulated lists are numerous. Chief among these is the enhancement of readability. In the busy day-to-day practice of law, more emphasis is placed on being efficient than on complete analysis. In many cases, however, statutorily prescribed or court mandated formats take away any hope of working smart.
Using tabulated lists increases the ease with which an attorney can read a document, comprehend the material and find answers quickly. Another benefit is the ability to convey complex information in a clear, concise manner.
For example, a discovery schedule may be confusing as a matter of a block of text. As a tabulated list, the same schedule makes the reader aware of what is required:
NOVEMBER
15: Last day to serve initial disclosures
28: Last day for party-serviced plaintiff(s) to serve initial disclosures on other
party(s)
DECEMBER
9: Last day for the plaintiff(s) to serve defendants with answers to interrogatories
and admissions
16: Last day for the defendants to make disclosures of expert witnesses
JANUARY
6: Last day for all parties to deliver documents to be inspected
14: Last day for defendants to disclose rebuttal witnesses and experts
21: Last day for the plaintiff(s) to serve defendants with answers to requests for
admissions
27: Last day for all parties to exchange witness lists (i.e., persons to be
called as witnesses at the trial)
28: Last day for the all parties to exchange exhibits to be introduced at
trial
In addition, the proper use of tabulated lists provides "white space" — that is, the use of line breaks, spaces between paragraphs and between sentences that makes reading easier.
How to Use Tabulated Lists Effectively
The most effective way of using tabulated lists is to use capitalization to indicate the levels of a list. Suppose, for example, you have information that should be presented in 3 levels of indentation. The best way of indicating the top-level points and the intermediate points is to set the top-level point with capital letters and the intermediate points with lower case letters. Under this approach, you do not use bullets for the top level or the intermediate level. When an intermediate point is divided into sub-points that, in turn, are divided into even more sub-points, those sub-points are indicated by using bullets before the individual items:
I. This is an example of a top-level point.
A. This is an example of an intermediate point.
• This is an example of a sub-point of
A. , which in turn is an intermediate
point of I.
• This is an example of a sub-sub-point of
A. , which is a sub-point of B,
which is an intermediate point of I.
When using this method of setting out your information, try to keep the number of levels to a maximum of 3. The 4th level is normally too deep and takes too much concentration to follow. Also be careful to check the indentation of each level so that no lower-level point is positioned farther left than the next higher level. If the sub-point is positioned farther to the right than the top point, that confuses and distracts the reader.
Some types of information commonly lend themselves to using tabulated lists. For instance, rules, laws, regulations, or guidelines often can be more easily understood if they are presented with some form of indentation: (1) for mandatory provisions; (2) for general rules that are not mandatory but a good idea to follow; and (3) for other helpful guidance:
(1) Mandatory
(i) must present this
(ii) must present that
(2) Generally
(i) should present these
(ii) should present those
(3) Helpful Guidance
(i) can present these
(ii) can present those
But as you can see, this makes for a very confusing and difficult-to-follow set of rules for a number of reasons — checking for the correct indentations, getting the right colors on the right level, and maintaining the correct indentation. Sometimes it’s OK to use regular numbering but to leave out the color-coding and the indentation, especially if the list is very short:
- (1) Mandatory
- (2) Generally
- (3) Helpful Guidance
The important thing to keep in mind when using tabulated lists is to be consistent throughout, so that each item in the list is clear in terms of its relationship with the other items. This is one of the underlying principles of clarity in any writing that is intended to be read by an audience. Consistency helps the reader tremendously.
Common Pitfalls When Using Legal Writing Tabulated Lists
While tabulated lists can be an effective communication tool, they can also become problematic for legal practitioners if not used judiciously. Overuse of tabulated lists is a common mistake that can cloud rather than clarify. Sometimes, the desire to provide structure and easily digest content results in a barrage of such lists, often at the expense of other formatting devices, such as headings and bullet points. Clearly, when tabulated lists become a substitute for headings and bullets, rather than complementing them, they will be less effective than desired. Structuring information requires not only an understanding of how to use a list format—but also an understanding of when its use may be inappropriate.
A tabulated list may prove ineffective if the level of nesting required to accurately identify the relationships among the various levels of items is too deep for the reader. In legal writing, where the complexity of the content sometimes requires up to six or more levels of information, it is quite common to see writers err by forcing the use of tabulated lists without careful regard to the Level 6 content. When this happens, most readers quickly lose track of the itemized information because it is too difficult to know exactly where in the tabulated list the information being read fits. In such cases, it is better to use paragraphs with numbered sections to create headings.
Other tabulated list mistakes include:
In short, while the effective use of tabulated lists can provide clarity to the reader, relying on them disproportionately can create difficulties and confusion rather than promote understanding.
Sample Tabulated Lists in Legal Writing
Consider first the enforceability of certain covenants not to compete, which we’ll tabulate: This is a plain-spoken and useful list—readers take in the divisions within a short number of words, and the tabs break the covenants down into manageable elements.
Now take a look at a provision that grants a court authority to submit certain disputed issues to a jury, but without providing a descriptive list of those issues: "The Court reserves the right to submit to the jury and issue or issues which may become disputed during the course of the trial."
The indented text—a desirable solution, to be sure, but it doesn’t change the fact that this clause does not define or even suggest what the "issue" or "issues" might be. The remedy would be to include a tabular list: "The Court reserves the right to submit to the jury and issue or issues which may become disputed during the course of the trial, including: 1. _________ 2. _________."
There are no hard-and-fast rules about every possible use of a tabulated list in legal writing, but we’ll turn to one additional example, from the U . S. Court of Appeals for the District of Columbia Circuit, which at least pretends to position itself as "rule-friendly" with its federal appellate rules. C.A.D.C. Rule 32 specifies the mandatory format for briefs filed with the Court; subsection (m) states: (m) Indicative List of Contents. The front cover of each party’s brief must state the issues presented for review on appeal in the following form: (1) State briefly the general nature of the case, setting forth the parties’ positions in one or two sentences. (2) State concisely the specific legal issues the party intends to raise in the appellate court, i.e., the issues to be addressed in the party’s argument, without including additional facts or argument. And so the Rule continues, explaining what matters may be included as subsections of the principal "issues presented" list. Another court—D.C.’s sister circuit for the western half of the continent—has made similar provisions under similar naming conventions.
Using Tabulated Lists to Transition and Connect Within Legal Argument
Having established the ground rules for tabulated lists, we turn to how they can be integrated into an overall legal brief or argument. Because most lawyers are trained to think and write in traditional paragraphs, they sometimes have difficulty picturing in advance how a list can fit in with the presentation of their legal facts and arguments. Experience teaches, however, that the best way to develop this skill is by doing it. So, for the moment, let’s forget for a moment our typical paragraph style and begin thinking about our legal cases as divisible lists.
To begin with, we simply take the items we previously identified as separate ideas and present them in a list format.
Whether it’s purported fact or legal argument, if you find yourself regularly repeating the same conceptual points over and over, try taking them out of the text and placing them into a list. For instance:
Or if you’re arguing that a particular statute trumps a weaker, previous statute, you could treat each of the statutes as a point in a list with a strong statement highlighting the point to be made regarding the statute.
Of course, when the issue is a dynamic interplay between multiple aspects of the law, like with statutory law where bright-line rules interact with grey areas, or principles of equity vs. strict interpretations, you might have a combination list:
Ultimately, however, once you’re comfortable with the list format, you can present it with almost any degree of logical complexity, including nested lists that provide matching levels of depth.
Closing Thoughts on Legal Writing and Tabulated Lists
In professional communication, brevity, clarity, and organization are paramount. Tabulated lists, with their eye-catching, structurally coherent manner of grouping information, are among the most effective visual tools to assist in achieving these goals. Still , not all tabulated lists are created equal. Like their plain text counterparts, they must possess a logical structure and flow to be the most impactful. We encourage legal professionals to employ tabulated lists with an eye toward best practices for more effective communication.
