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My Controversial Talk on Typography (No Kidding)

April 22, 2012/by J. Scott Key

If you read this blog regularly, it is no secret that I am a recent convert and evangelist for Matthew Butterick’s Typography for Lawyers. I have a long way to go in my legal writing before I reach a point of mastery, but I am happy to be paying attention. One of the chairs for the Spring Seminar of the Georgia Association of Criminal Defense Lawyers is also an acolyte, and I was invited to speak on typography for an hour. It turns out that I spoke on a little more than typography — subtopics included the need to provide a succinct summary of the desired result, the issues on appeal, and the reasons the court should grant relief, and the need to limit the number of issues on appeal as much as possible. Most cases, after all, are about just one thing.

I was the next to last speaker on the last day. And, as passionate as I am on the topic, I feared that the topic was a bit nerdy and perhaps boring for some. I hedged my bets by putting some serious work into my presentation and the Keynote slides. Writing materials for a talk on typography is also an intimidating task. The project invites a more critical look than others might. And I put as much planning as I could into making the topic engaging.

It turns out that I was wrong to be afraid. Lawyers, even criminal defense lawyers, are a conservative lot and sometimes not good with suggestions about the need for change. And so it came to pass that I was the only speaker of the entire conference to get heckled. That’s right, in a talk on fonts and the structure of appellate briefs, given on the last day of a three day seminar in Savannah, Georgia, I had a heckler. The guy who spoke on abortion, contraception, and the right to privacy sailed right through without as much as a sigh.

I’ll add that I was thrilled to be heckled on this topic. It is heartwarming that anybody is passionate about typography to such an extent that she told me that an example brief I put on the screen “looked like [shiitake]” because I didn’t turn on full justify and that I was off my rocker for criticizing Times New Roman and Courier. I like passion, even when such passion is misplaced. I am thankful that the reception was so intense, and I also want to take a few lines to say more about these three things — justification (in a graphic design sense not in a theological sense, though I will strive to be graceful), the Courier font, and the Times New Roman font.

Full Justification is a Matter of Personal Preference

The audience member was a serious proponent of full justification, noting by way of simile, that my decision to left-align the text rendered an excrementitious product. The opinion was as wrong as it was hyperbolic. As to the hyperbole: at no point during the presentation did green flies begin to buzz about the screen where my Keynote was being projected. As to the heckler being wrong, I’ll respond here.

Butterick writes (and I defer to him because he wrote the book and because he is credentialed in this area) that “compared to left-aligned text, justification gives text a cleaner, more formal look.” He also notes that justification “alters the ideal spacing of the font, but in paragraphs of reasonable width it’s usually not distracting.”

In the end, he notes that “[j]ustification is a matter of personal preference. It is not a signifier of professional typography.” He cites as an example the fact that many newspapers mix it up.

I will add that I never endorsed either way. I just used a previous brief of mine, one where the text was left-aligned, as an example. The audience member has a strong preference for justification. She’s not wrong to have it but was wrong in the extent of her criticism of left alignment.

A Defense of Courier, Really?

I took some heat for my criticism of Courier. And I was actually quite surprised that anybody but a prosecutor or bureaucrat would feel so strongly about this font. This font served its purpose in 1955 when it was invented. The font was created for the “golfball” typing head that IBM was developing and would later premier in its 1961 Selectric Typewriter. The font, and other monospaced fonts, was created to deal with mechanical issues with the typewriter. To quote Mr. Butterick, “[monospaced fonts] were not invented to win beauty contests.”

To quote an article from Slate, “its design principles are little more than phantom limbs: Like any other typeface, it is whisked from the digital ether without regard for its original use. … What is most remarkable of all, of course, is that a typewriter font is still being used at all in the post-typewriter age.”

With the exception of Robert Caro, I do not know of anybody who still uses a typewriter. So, it really isn’t necessary to use a monospaced font.

When you use monospaced fonts, you get fewer words per page, and the font is hard to read when compared to proportional fonts. There really is no reason to use Courier unless a court rule requires it.

In 2004, Courier fell out of favor with the State Department. The preferred font is now Times New Roman 14.

It’s Time for the Decline and Fall of the (Times New) Roman Empire

The heckler also has a special place in her heart for TNR. It’s an okay font. Though its problem is its ubiquity. Using TNR is essentially not choosing a font at all. According to Mr. Butterick, the problem is the blah factor:

When Times New Roman appears in a book, a document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.”

Finally, he advises, “if you have a choice about using Times New Roman, please stop. Use something else.” A person can choose Times New Roman and be passionate about it (I know one person who does and is). But that choice conveys apathy.

A Final Word

If you are in the Georgia Supreme Court or the Georgia Court of Appeals, you have little choice about your font selection. You can go with Courier New 12 and look like a prosecutor, or you can go with Times New Roman 14. At either of those courts, TNR conveys that you don’t want your appeal dismissed and that you don’t want to be sanctioned. It does not convey apathy. In client letters and in filings in other courts, you can and should (in the name of all that is holy) choose other fonts.

What to do When You Get to Write the Order

May 26, 2011/by J. Scott Key

This week’s theme has been orders. Every now and them, you are lucky enough to win. And when you’re even luckier, you get to prepare the winning order. Sometimes, though, you get asked to draft an order, and your opponent does, too. Drafting an order in that situation is a little tricky, because you have to wear your advocate hat underneath your coat (although, if you’re writing good briefs, you are probably making your brief sound like the perfect order already). Sometimes, you get asked to write a brief because the judge is humoring you and wants to show the appearance of neutrality even though she has already made up her mind. Sometimes, you and opposing counsel have cut a deal, and you get to draft the order. Drafting the order is an awkward opportunity, and if you get it, want to share a few tips with you about how to do it well.

Make the Judge Look Good

The order, when filed, is a reflection of the judge, even if some lawyer opens the file in the Clerk’s office a century from now. Make the legacy a good one. If your order is going to compete with opposing counsel’s, make your look better than the one he presents. Think about the layout, font, spacing, and other things. Matthew Butterick’s Typography Lawyers is just as helpful here as it is for preparing the brief. So is the Bluebook. Make the order look like something the judge will be proud to sign before she reads the first word of it. When you cite cases, don’t forget to provide pinpoints. Make sure that the cases you reference really stand for your argument. All the things that you do for your credibility in a brief are even more important when you prepare the Order. If you betray the judge’s trust in this task, you will never get the opportunity again.

Just the Facts Ma’am

Think long and hard about the standard of review. Divide the order into findings of fact and conclusions of law. Put as much of the important stuff as you can think of into the findings of fact. If your order on the judge’s behalf is appealed, the facts are going to have a more favorable standard of review than legal conclusions. But don’t stop there. When you get to the legal conclusions section, place findings of fact there, too. Many legal conclusions are mixed with factual findings. And factual landmines are just the thing to sprinkle into a law section of an order.

Have the Order Written (or, at least in mind) Before the Hearing

There are 3 reasons to pre-write it. First, when you think about how you’ll win, you already have victory in mind. Secondly, you will enter the field of battle with the ability to perceive the matter from the judge’s vantage point (you’re already considering it from your opponent’s, right?). And, from a practical standpoint, you can get a signature, get it filed, and get your client that much closer to the relief you are seeking. And you can hand over the “spoils of victory” before you leave the courthouse. Plus, things you can finish up at the courthouse don’t go to your inbox. Also, if the judge knows that he won’t have some item to take to his inbox after court, you get another edge over your opponent who didn’t bring a fill-in-the blank-and-move-to-the-next-case option for the judge.

I’ve written 3 orders this week. One was probably never read. One is under advisement. And one will likely be signed before the week is up. They’re deceptively difficult to draft. But there are worse things that could have happened to me this week than writing the orders for my client.

Choosing Fonts for E-filing to Cater to Screen or Page

April 22, 2011/by J. Scott Key

Some weeks back I wrote about whether lawyers should write for the screen or for the page in the era of e-filing (you can e-file in the Georgia Supreme Court and Court of Appeals now). It turns out that there is a way to hedge your bets, at least in terms of font selection. Kendall Gray, over at The Appellate Record, has teamed up with Matthew Butterick (I wrote about his excellent book earlier) to figure out the best fonts to choose when your appellate panel may either print your brief out or read it on the screen. Part 1 gives you the short answer. Part 2 gives you the even nerdier explanation (and nerd is not a perjorative term spoken from this law-nerd).

The answer is that, as long as you are submitting your brief as a pdf, you don’t have to use a screen-optimized font. Now, as to what font is best for a brief, take a look at Typography for Lawyers. It’s even reviewed over at MacSparky, my very favorite law-nerd sight (David Sparks doesn’t focus on the fact that he’s a lawyer, but it comes out a lot in his writing and in his Mac Power Users Podcast).

My First Georgia Appeals Brief Since Buying Typography for Lawyers

December 15, 2010/by J. Scott Key

I just finished my second draft of a Brief of Appellant for a case I will soon be filing in the Supreme Court of Georgia. It is the first brief I have filed since I purchased and read Matthew Butterick’s fantastic book, Typography for Lawyers. I’ve written about this book already, and I don’t want to do a full review of it. The real review will come over time as I integrate the valuable tips in this book. However, I am changing the way I prepare briefs and pleadings as I work with this book. So, I think it might be helpful to check in from time to time as I learn more. I want to explain a couple of things about some key lessons I have learned so far.

Don’t try to do it all at once. I’m taking a buffet approach to the advice offered in this book. It is a little overwhelming to try to do a wholesale change. There are many rules to learn and track. I’m trying to bring something new into every brief I do. The fantastic thing is that, from the appearance of my opponent’s brief, it appears that he isn’t reading this book. And, comparing the layout of my brief to the layout of his, I have another edge on the competition (note, I am working on about three briefs right now. If you are the competition on one of them, I’m not necessarily talking about you. In fact, keep doing the same stuff. Your brief looks great).
White space is important. If I’ve learned one key thing so far, it is to look at your pages. How does your brief look? Is it a brief you would want to read? Mr. Butterick advises that you should have more than one-inch margins. Unfortunately, the Georgia Supreme Court is pretty serious about their double space rule. I got a little frightened about playing around with the spacing. Ideally, I would go to two inch margins. But they looked funny with double spacing. So, I went to inch and a half, and it made a tremendous difference in the look. This brings me to my next point.
You can still do some amazing things to your layout within the constraints of court rules. Alas, I stuck with Times New Roman 14, mainly because I am working with another lawyer on this case, and I didn’t want to shell out money to buy a new font set (Mr. Butterick says much about purchasing non-system fonts in his book) for this brief only to encounter issues as I collaborate with co-counsel. But, the margin adjustments really made a night and day sort of difference. I’m off to a good start
I’m using italics where I was underlining. It makes the brief look better. My opponent went crazy with the whole underlining thing. It’s like his brief is a “before” picture of my current brief.
I’m using a real ellipsis ( … ) instead of typing out three periods ( … ). It looks better, and life is much easier when it ends up on the end of the line. Those three dudes stick together now.
I’m using a real en dash now ( – ) where I was just typing two hyphens ( — ) before. Oh, and I now know what an en dash is. I also know what an em dash is ( — ).
I stopped putting bad parenthesis art in the case caption and started doing my caption using tables.

These are a few simple changes that I have made in the layout of the brief. It has made a world of difference. In addition, I am about a week ahead of deadline on this brief. So, I have the luxury of tending to the substance in addition to picking up more hands-on knowledge of layout. Which is my final lesson. Thinking about layout makes the whole process more fun than it already was

Georgia Appeals Court Rules “Mandate Ugliness”

December 7, 2010/by J. Scott Key

In his blog yesterday, Kendall Gray referenced the Rules of the Georgia Court of Appeals, citing it as “a jurisdiction with rule-mandated ugliness.” Kendall’s blog post comes at a time when I am reading Typography for Lawyers by William Butterick. I’ve learned a great deal about fonts and layout and was all excited about using my new-found knowledge on a future appellate brief when I re-read the Georgia Court of Appeals Rules and found, well, “rule-mandated ugliness.” But it’s not quite as bad as it sounds. Here’e the language from Rule 1(c) of the Rules of the Georgia Court of Appeals:

All documents filed with the Court shall have no less than double spacing between the lines including quotations and footnotes. Letter spacing and type or font size shall be no smaller than ten characters per inch. Notwithstanding the 10 characters per inch requirement, the Court shall accept in lieu thereof Times New Roman Regular 14pt.

Also, there’s a little more good news. Now, to the issue of margin. According to Rule 24(c), there must be a “margin of not less than two inches at the top and a margin of at least one inch on the sides and bottom of each page.”

Matthew Butterick recommends two-inch margins, which you could do under the Rules of the Georgia Court of Appeals. He also recommends moving away from system fonts, which you can do as long as you meet the 10 characters per inch requirement. Of course, you still have “rule mandated ugliness” because you must double space. Butterick recommends spacing in the neighborhood of 1.2 to 1.3. inches. Which sounds odd if you’ve never written a brief like that. But it’s really not so odd. Are you reading a novel right now or a new non-fiction book? Take a look at it. I bet your margins are at least two inches, and I can pretty much guarantee that the lines aren’t double spaced. Why? Well, for one, because the publisher wanted to keep you reading. Two, it’s a book and not a term paper. In fact, pull random books off your shelf. See any Times Roman 14? See any double spacing?

Why, you might ask, would the rules mandate ugliness. First, I believe Kendall is correct. The rules were likely originally crafted in the typewriter era. However, I suspect that there’s a little more to the story. I think the rules were likely amended at the beginning of the personal computing era. I’d be willing to bet that the courts got worried that there would be an attempt to manipulate how many words could fit on a page with those new-fangled computers.

Of course, there was a better solution. The Court could have provided a word count limit instead of a page count limit. But that was a little too easy, I suppose.

And I wonder if any lawyer really gamed the system or if there was fear back in 1982 that somebody might potentially try to game the system. You know how appellate lawyers are. We’re a bunch of James Dean types and that’s been the case for a long long time. It ain’t ever gonna change. When I decided to become an appellate lawyer, it was hard to focus. Women with a penchant for the bad boy heard that there was an appeals lawyer in town.

Scott Greenfield’s review is what actually led me to buy the book. He wrote this about briefs with a pleasing layout:

No, they won’t make a loser appeal into a winner, but like wearing a decent suit to court, or polishing your shoes, it’s one less detriment and one more benefit. Butterick’s point, and mine, is that there’s no good reason not to do it as well as it can be done.

If good typography is like a good suit, then a brief typed in conformity with the Rules of the Georgia Court of Appeals is a powder blue polyester leisure suit, with bell-bottomed pants, huge lapels, and a wide flannel tie. It was a great suit for the day it was written and great for a 70s party now. I’m just not sure I’d wear it to court.

Now, over at the Supreme Court, the look is a little more modern. You might not look out of place on the show 21 Jump Street. Supreme Court Rule 18 reads:

All filings shall be printed or typed with not less than double-spacing between the lines, except in block quotations or footnotes. Margins shall be no less than one inch at the top, bottom and sides. The type size shall not be smaller than 12-point courier font or 14-point Times New Roman.

The good news is that you can single-space block quotations and footnotes. The bad news is that they reference the courier font — literally the ugliest font ever made if you don’t count comic sans (which I don’t).

With all that said, you have some room to think about design and to make your brief stands out. Lawyers are a careful lot, particularly when sober. So, most will use the “example fonts” to play it safe. You may choose another that is the same size and be okay. Also, you can go for bigger margins to provide more white space.

And, if you think this is just kooky Mac user talk, check out the Rules of the United States Supreme Court (PDF), that hotbed of flashy design. In particular, check out Rule 33. Actually, check out the layout of the rules themselves. Mr. Butterick would approve. And there’s a word count limit, not a page limit. The things is, if your brief looked like the United State Supreme Court Rules, you would likely not be able to file it in the Georgia Court of Appeals. Though it was be the most readable brief in the stack.

If the United States Supreme Court Rules were a suit, it would look nice in court today.

But, in Georgia, it’s Ron Burgundy time. So, here’s hoping that the rules are modernized. Until then, stay classy Atlanta.

How Your Brief Looks is Nearly as Important as What You Say

November 16, 2010/by J. Scott Key

Design is an important part of brief writing. And the font and layout you choose will have an impact on how the Court receives your brief. It certainly shapes how I feel about writing the brief and submitting it. I cannot see the Courier New Font without thinking of the research, writing, and advocacy in my first year of law school. The font feels scary and oppressive and conjures up images of red ink and biting comments written in the margins.

The people who read your briefs at the courts where you submit them are likely reading a stack of briefs that look pretty much like yours. “Oh look,” the staff attorney might be saying, “another brief in Times New Roman 14. Awesome.”

I’m guilty of going with the good old default font a good bit of the time, but I am learning to do things differently.

Two of my favorite legal blogs have featured posts on this very topic. Over at Simple Justice, Scott Greenfield features a review of Matthew Buttrick’s Typography for Lawyers. I haven’t ordered it yet, but I likely will. One great tip that I read elsewhere is to eliminate the double space at the end of sentences. I’ve been doing that since my tenth-grade typing teacher told me to do it. I stopped after reading somewhere else that I should. That extra space is not necessary, it turns out. In fact, as I review Mr. Butterick’s book for this post, I think I’m about to order it. You probably will too if you check out the sample chapters (PDF) from his website.

My other favorite blogger, Kendall Gray, has been writing about layout and typography at his blog, the Appellate Record. He has written a three-part series about page layout. Part one introduces his general idea of how a brief should look. Part two focuses on the concept of proximity. His third post deals with justification (no, I have not lapsed into theological discourse. I’m talking about how the text should be aligned).

By no means do I suggest that the document’s appearance is a substitute for its substantive content. Rather, designing the brief into a document that the reader wants to read, a document that does not appear just like the other briefs the clerk is reading in that big stack, and that looks better than the one the DA is submitting, is important.

I’ve just scratched the surface on the design element. And I look forward to learning more about it. All they taught me in law school was the importance of the ugly Courier font and something mechanical about a rule proof. It does’t mean that you won’t lose to bad writing sometimes (that’s what representing the appellant in criminal cases is like sometimes). It just means that the close case might just go your way more often than it does right now.