Formatting suggestions for court opinions

Practitioners must follow court rules for their pleadings and briefs, but courts can do what they want. Here are my suggestions for formatting court orders and opinions. For more and better guidance, see Matthew Butterick, Typography for Lawyers (2d ed. 2015) or his website.

Don’t use Courier. I recommend a serifed typeface for the body text (my example uses Cambria), and I follow the recommendations of many layout experts to avoid Times New Roman. I believe it’s appropriate to format short, topic headings in a contrasting sans serife font (my example uses Calibri Bold).

Although double line spacing is ubiquitous in legal documents, it’s problematic for on-screen skimming and readability and because it uses lots of paper if printed. Some say double-spacing makes documents readable. Yet no one reads double-spaced books, magazines, or newspapers, let alone web pages. Instead, apply reasonable line spacing (my example uses 1.2) and push in the left-right margins to reduce the line length (my example uses 1.5-inches).

Use only one tab to indent paragraphs, and consider shortening the tab (my example uses .25 inches).

If you want full justification, you should turn on hyphenation to reduce gaps and spaces (my example does). If you dislike hyphens, check out most newspapers and magazines and nearly all books: they’re hyphenated. If you still dislike hyphens, left justified text with a ragged right margin is fine for legal documents, I say.

Use italics instead of underlining. Avoid ALL-CAPS.

Add text to the outline numbers. You can use topical headings: Introduction. You can also use explanatory headings (point headings): The structure and punctuation of Maine’s wage-and-hour law creates an ambiguity.

And if you can bring yourself to do it, abandon Roman numerals and, possibly, use a numbering system that allows readers to know where they are at any point in the document. It might look like this:

1.
1a.
1b.
2
2a.
2b.
3.
4.

Here is my reformatted example (click to view):

format

Old, dysfunctional layout of judicial opinions

You’ve probably heard about that “serial comma case,” O’Connor v. Oakhurst Dairy. The decision, Judge Barron of the First Circuit tells us, was based on the absence of a serial comma, which is the second comma here: red, white, and blue. For punctuation nerds, it’s an interesting case, and I hope to write more about it.

For now, I encourage you to read the opinion in its original format. Why? Because it’s outdated, dysfunctional, and annoying. At least that’s what I think. Here are my reasons.

The opinion—

  1. uses Courier 12 point, a monospaced, typewriter font that’s ugly and old
  2. uses double line spacing, so on-screen readers scroll twice as much, paper readers turn twice as many pages (not to mention using more paper to print it), and all readers lose a degree of visual understanding because paragraph breaks and large-scale formatting cues are farther apart
  3. uses 2 tabs to indent the first line of each paragraph; older lawyers might remember when this was a common practice—I worked for lawyers who did it (in 1989)—but it’s typographically dysfunctional and just looks odd
  4. uses full justification without hyphenation at the right margin; full justification can look good if done well—it’s how most books and other professional publications are laid out—but if it’s done poorly and without hyphenation in a monospaced font like Courier, it looks terrible: gappy and unprofessional, with white space splattered randomly on the page
  5. uses underlining instead of italics, so if it was meant to look like it was typed on a typewriter, it succeeds
  6. uses 1.2-inch left-right margins, which is better than standard 1-inch but a bit small; the line length (number of characters from left margin to right) is still too long
  7. uses numbered sections without text—no descriptive headings and no explanatory headings; you know how the table of contents in a brief gives the reader a preview of the writer’s argument outline? Well this is what the court’s table of contents would look like:

I
II
III
A
B
IV
A
B
C
V
VI

That isn’t helpful.

Readers can probably infer from my critique what the preferred formatting practices would be, but I’ll go over them next week.

The legal-writing teacher who makes mistakes

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I make writing mistakes. My students and colleagues will tell you so. I’m not the world’s greatest proofreader; I’m easily distracted and lazy and hasty. Yet I can be judgmental about others’ mistakes. So I try to soften my judgments and practice patience, hoping it will be reciprocated. Several years ago, I wrote this about mistakes. It contains a confession.

A former student sent me this comment, carried in a major newspaper, from a senior partner at a law firm:

Do not ever for the second time give your senior a piece of writing with a typo or a grammatical mistake. I will take it once and I will tell the junior my set speech. But if it happens again? Well, find out for yourself.

I have three problems with this statement.

1. The speaker is talking about litigation writing. (If you visit the firm’s website and look this person up, you’ll see that the person is a litigator.) My former student rightly points out that this kind of expectation is probably unrealistic for some transactional drafting:

I’m not a bad writer, but far from perfect. On occasion I miss small errors in my work. I might draft a 160-page credit agreement, based on a form that itself had errors. Some of those errors are minor, such as a stray parenthesis, misplaced comma, etc. Others are more serious and could lead to ambiguity. Of course, I try to catch everything, but I don’t think I’ve turned in a perfect draft once yet. Nor have I seen a perfect document yet from other attorneys unless the document is very short.

Perfect work is rare, but perfect work in the context of a 160-page credit agreement is likely impossible on the first draft. Of course, the speaker is thinking of a motion or a brief or a memo. These are rarely more than 50 pages and are often much shorter. So the speaker should have qualified his remarks for the context in which he works.

2. I think the speaker’s statement is hyperbole, intended to scare young lawyers. Of course, you must proofread your work carefully—very carefully. You should try to turn in perfect work every time. But you must acknowledge that it is not possible to turn in perfect work every time. For example, I wrote a 230-page book, which I proofread myself and had two others proofread. I later found 4 typos in it. I was chagrined and dismayed and embarrassed. But that’s life. Perfect work is rare. In truth, it’s unusual for me to read a book—and I read almost exclusively books about writing—and not find at least one mistake. So the speaker should be more realistic. Besides, the speaker’s not perfect either . . .

3. The speaker makes mistakes, too. This is often what those who claim to expect perfect work forget or seem blind to. I read the speaker’s profile on the firm’s website, and I found two mistakes. Granted, they were fine points of punctuation (and I’m not talking about the serial comma, which the speaker does not use, by the way). But they were mistakes according to the Texas Law Review Manual on Usage and Style, The Redbook, and The Chicago Manual of Style.

So there.

Mastering the dash, Part 2

In Part 1, I said the dash follows few rules and is a flexible mark with many uses. With all those possibilities, how do you decide when to use a dash? Consider two key writing goals: breaks and emphasis.

According to June Casagrande in The Best Punctuation Book, Period, you can use the dash to indicate “breaks in a sentence” or “a change of sentence structure or thought.”[1] The dash signals a new direction, often abruptly, and might replace a heavier transition word:

  • Kaye will sell the yacht. However, the buyer must have financing within 30 days.
  • Kaye will sell the yacht—if the buyer has financing within 30 days.

The period signals a full stop. Here’s a new idea. The semicolon signals a pause; here’s a related idea. The dash signals a break—here’s something important. We saw this in an earlier example:

  • Chen does not object to the fee. She asks that it not be disclosed.
  • Chen does not object to the fee; she asks that it not be disclosed.
  • Chen does not object to the fee—she asks that it not be disclosed.

Dashes emphasize. In The Redbook, Bryan Garner calls the dash “a forceful and conspicuous punctuation mark.”[2] In the earlier example about Calhoun’s statement, the paired parentheses downplay the inserted clause, the paired commas are neutral, but the paired dashes emphasize it.

  • Calhoun’s statement, which was false, blamed the problem on Scoville.
  • Calhoun’s statement (which was false) blamed the problem on Scoville.
  • Calhoun’s statement—which was false—blamed the problem on Scoville.

Writers can also use a single dash to point, and that pointing is emphatic. In the following example, the second version highlights the lack of permission, and it’s all in the dash:

  • Jeffrey deleted the paragraph without checking with his co-author.
  • Jeffrey deleted the paragraph—without checking with his co-author.

As for the myth—I’ve met lawyers and teachers who frown on the dash, saying it’s too informal for legal writing. Some legal-writing teachers won’t allow their students to use it. I disagree. The dash is entirely appropriate for legal writing, especially persuasive legal writing. Yes, overuse might be a problem, so exercise judgment, but you should add the dash to your writing tool kit.

[1] June Casagrande, The Best Punctuation Book, Period 118, 119 (2014).

[2] Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.51 (3d ed. 2013).

Mastering the dash, Part 1

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Let’s get to know the dash. It’s good for breaks and pauses, emphasis and force. In Part 1 I’ll explain how to create the right dash and go over some rules. In Part 2 I’ll discuss several good uses and try to dispel a myth.

The dash discussed here is the em dash. It’s a long, horizontal punctuation mark—like these—and should be distinguished from the en dash – like these – a shorter mark with different uses. On a typewriter, you create a dash by typing two hyphens with spaces on either side. Are you using a typewriter? Then don’t use two hyphens. “Use real dashes,” says Matthew Butterick in Typography for Lawyers.

To get the em dash in Word, type two hyphens, leaving no space on either side. Word should automatically convert that into an em dash. If you put a space before and after the hyphens, Word will convert that into an en dash, which is the wrong mark. (Yet so many writers use spaces that the shorter en dash is ubiquitous despite being technically wrong.)

You can also insert an em dash directly with the Insert Symbols function or with keystrokes: alt + 0151. On a Mac, hold down the Shift and Option keys and press the Minus key. Note that copying and pasting sometimes converts an em dash to a hyphen—a glitch you’ll want to catch when you proofread.

Rules? The dash obeys few rules. It’s flexible. You can use it in place of commas, colons, parentheses, periods, and semicolons.

In place of a comma:

  • It was the seller who balked, not the buyer.
  • It was the seller who balked—not the buyer.

In place of a colon:

  • The courts assess three factors: purpose, type, and effect.
  • The courts assess three factors—purpose, type, and effect.

A pair of dashes in place of a pair of commas or parentheses:

  • Calhoun’s statement, which was false, blamed the problem on Scoville.
  • Calhoun’s statement (which was false) blamed the problem on Scoville.
  • Calhoun’s statement—which was false—blamed the problem on Scoville.

The dash can even replace a period or semicolon, separating independent clauses:

  • Chen does not object to the fee. She asks that it not be disclosed.
  • Chen does not object to the fee; she asks that it not be disclosed.
  • Chen does not object to the fee—she asks that it not be disclosed.

With all these possibilities, how do you decide when to use a dash?

That’s Part 2.

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