Lawyers are not always rational. We buy $600 shoes to wear for oral argument, to stand hidden from the navel down by a lectern and 10 yards from the nearest Article III personage, but we file briefs that, by the standards of professional typography, look like dogshit.
Here are five ways to make your briefs easier for judges to read:
- No all-caps claim headings. SORRY, BUT YOUR FOUR-LINE-LONG ALL-CAPS CLAIM HEADINGS ARE VIRTUALLY UNREADABLE. A JUDGE’S ATTENTION IS YOUR MOST PRECIOUS RESOURCE, DON’T FRITTER IT AWAY BY MAKING THEM SLOG THROUGH NARCOLEPSY-INDUCING HEADINGS JUST BECAUSE THAT’S HOW YOU’VE ALWAYS DONE IT. And Oh By The Way Those Long Title-Caps Headings Are No Picnic To Read, Either. Just use regular capitalization for your claim headings, boldfaced in the argument section and unbolded in the table of contents. Save all-caps for your section headings (statement of facts, argument, etc.) and furious emails.
- No Courier. Don’t use a typewriter-style font, they’re harder to read. Seen any books, magazines, or newspapers set in Courier lately? Me neither. Font choice matters. Use a proportionally spaced serif font, and bonus points if you pick one besides Times New Roman.
- Wider side margins. FRAP 32 requires margins of “at least one inch,” not ‘exactly one inch.’ Bigger margins equal shorter lines and more white space, and both make reading easier. Sure it will add more pages, but the word count is what matters. Use 1.2″ to 1.5″ side margins instead.
- Avoid substantive footnotes. Lots of judges — including Third Circuit judges — read briefs on tablets instead of on paper. For tablet readers, jumping back and forth between the text and footnotes is extra tedious. They’ll find you extra tedious if you keep sticking your points in footnotes.
- Use italics instead of underlining. Underlining citations or for emphasis is a relic of the typewriter age. Underlining interferes with easy reading by making it harder for your eye to recognize lowercase letters like y and p.
There’s a lot more to professional typography than these five points — check out Matthew Butterick’s stupendous book Typography for Lawyers (2d ed.), or the Seventh Circuit’s useful little online typography guide. But getting the basics right is a fine start.
Making your brief less of a chore for busy judges to read will do more for your client’s chances, and your own image, than those Bruno Maglis ever will.
I prefer underlining to italics for citations and emphasis – in my opinion, it makes it much easier to identify an underlined case in a big pile of text than an italicized case buried in that same pile. I recognize that this is the minority view, but I’m not the only one who prefers it. If I’m not mistaken, Judge Shwartz and Judge Rendell typically go the underline route.
Need another reason to avoid substantive footnotes? Waiver.
Also, here’s a 6th suggestion: More (and better) headings. Though, not in ALL CAPS, of course.
I agree that underlining has its supporters, including some judges. The 10th Circuit judge I clerked for underlined cites, too. And I also agree that underlining jumps off the page more. But, besides the readability point I mentioned in my post, I think Bryan Garner isn’t alone in thinking that “Underlining bespeaks amateurishness.” (Winning Brief, 3d ed., p. 146.) I don’t imagine any judges or clerks would think less of a lawyer who chose italics, while the same may not be true of underlining, so there’s that, too.
Anyway. Appreciate your comment.
One reason that it’s hard to pick out an italicized case buried in a pile of text is that Times New Roman has a very weak italic style. (Butterick calls Times New Roman italic “mediocre” in Typography for Lawyers.) There are other, better fonts with italic styles that stand out more.
1 and 2 are so important. I immediately think less of a lawyer if the brief uses all caps or a courier font. It also makes my life harder. I also agree with 4 and 5, although that’s just preference. However, I disagree with 3. I hate it when I get a brief that has 2″ margins. It makes a lot of things more tedious for me than when I get a brief that has 1″ margins.
I haven’t seen briefs filed with 2″ margins and agree that’d be too big for 14 pt type. But the last thing I filed had 1.5″ side margins (the top end of what I recommended) and I thought it worked well, and with my font the line length ends up right where Butterick recommends. But Garner’s recommendation is 1.2″ side margins, and your comment has me thinking about going back to that.
Thanks for weighing in.