The Death of John Doe
Have you heard the news? John Doe and Jane Doe have died.
Did you know them? They are, easily, the most litigious people in the United States. The simple reason is that when an attorney doesn’t know the name of another party in a legal matter, John Doe and Jane Doe are common placeholders.
When people pass, it’s customary to look back at their life stories.
People also always ask, “how did they die?”
Before we get to that, let’s start at the beginning.
John & Jane Doe are Born
John and Jane Doe were born somewhere in the now-forgotten history of the practice of law in what is now known as the United Kingdom. No one knows the exact origins. What is generally agreed upon is that the idea of using a fake name for an unknown party, by all accounts, was first used in the English practice of law around the 1500s. Interestingly, history doesn’t seem to capture who first thought of the idea and why they picked the name John Doe to begin with.
Whatever the reason, it’s pretty clear that John and Jane Doe came across the ocean with the UK immigrant lawyers and became commonly used on this land before the Declaration of Independence was written.
Can I tell you a secret? I’m not really a big fan of John and Jane Doe.
My First Gripe: John and Jane Doe are Very White
We can safely presume that in the early years of John Doe, it was a whole bunch of white dudes suing each other. Thus, the use of a very generic white name makes sense as a reasonable choice in this context.
But that’s the root of my first issue. Are we still practicing law in the 1700s? Do we really need to use super-white names as placeholders in our legal practice as a representative of everyone? Surely, this profession filled with brilliant minds can come up with some other idea that doesn’t presume only white people are involved in litigation.
I guess I can appreciate that it’s an equal opportunity white-ness.
Unknown criminal out there and we need a subpoena? Must be a white guy, so let’s get that “john doe subpoena.”
A dead unknown woman is found, it must be a white lady so let’s put “jane doe” as the name in the medical records.
Some unknown people and corporations out there committing rampant negligent acts? Must be those white guys and white male corporations!
While it is a little, might I say, refreshing to see whiteness not automatically put in the best possible light in the legal tradition, John Doe is still problematic because it presumes whiteness in every aspect.
As an attorney, I am a big believer in the importance of tradition. Just like precedent, tradition can create meaningful common expectations and stability.
However, our population in the United States is diversifying. White people will not be the majority in the United States in less than 20 years. So as “We The People” evolves, modern life requires our traditions to evolve as well.
The point I’m making here is that as our country becomes even more beautifully diverse, a serious question for each of us is whether the use of old, white people's names in our practice of law reflects reality and the interests and values of our clients.
Also, How Do I know John Doe is Straight?
The other serious gripe I have with Mr. & Mrs. Doe is the presumption that all unknown parties are straight people.
In one of my cases where my client was lesbian, I almost moved the Court to dismiss this nefarious “john doe” parading to be my client’s spouse in the complaint. Luckily, Plaintiff’s counsel agreed to amend the complaint before such matters were necessary. And yet, still to this day, I wonder how the Court would have ruled.
The crux of my argument would have been that Plaintiff included the specificity of a male partner to my female client in the complaint. As there was no such female-to-male makeup of my client’s marital arrangement, the failure of misgendering a party in the complaint was a failure born of the Plaintiff’s own making. Grant my motion please and let opposing counsel learn their lesson.
And this is even without me bringing up the problematic presumption that there are only men and women living in this world, disregarding the presence of gender outside of the binary. For more information on this, check out my article on Pronouns.
As the above example shows, it actually is in the interest of your client to be inclusive in the language of your complaint. Why create specificity that may potentially limit your client when the more honest word choice would also be the most accurate and advantageous to your client and your case?
So, as we lay dearest John and Jane Doe to rest, the question becomes, what do we use instead?
The Birth of “Unknown Person(s)”
I have a radically wild idea. If we don’t know the exact name of a party in a lawsuit, let’s admit it!
My proposal is the most honest one. I can see no reason why we can’t simply put “unknown person(s)” and/or “unknown corporation(s)” in our legal documents. And if you know one person’s name and want to include the marital community, simply include “and spouse” instead of presuming you know the gender makeup of their marital community.
If you’re worried about whether it’s “allowed” or not, I can put you at ease.
At least one branch of the Federal government has started using “U.I.,” or Unknown Individual, in their legal pleadings and documents. So, if the Feds can use it, I’m pretty sure we can too.
With this small change, we state that whatever their gender identity, race, or sexual orientation, these people are necessary to this lawsuit and should be held responsible.
And with just a few different strokes on a keyboard, we are both better at advocating and protecting our clients AND practicing law as Inclusive Attorneys. That is what being an inclusive attorney is all about. #Boom.
So, to answer the original question, “who killed John Doe?”
The Answer: We did.
Inclusive Attorney In Action
The law is made up of words. As such, language in the legal profession matters. As lawyers, we have an opportunity to choose to use inclusive language in our daily work.
Here is a checklist for your practice of law today.
When you see John and Jane Doe in your documents, delete and type in “Unknown Person(s)” or “Spouse.”
Update your forms so this change becomes automatic in the future.
Email opposing counsel asking them to amend their pleadings. Share this article if it’s helpful.
Include “Failure to State a Claim” as an affirmative defense in your Answer/Response. Consider filing a motion to dismiss.
If you have the power, institute an office policy.
How to: Send an office email instructing people of the change (and why) and offer time for feedback/questions. A simple “as we strive to be more inclusive for our clients and with each other we will be replacing John and Jane Doe with Unknown Person(s) and/or Spouse moving forward.”
Inclusive Attorney Bonus Action: Review a few of your most commonly used templates at work from the following lens: If I was married to someone of the same gender as me, would I be offended by the language in this document? Can I identify terms of art that I use that are rooted only in tradition? Do I know the history of these terms? Are they still the best terms for me to use in my legal practice?