Category Archives: Design

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 serif 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.

Word limits: better than page limits?

Last week, federal district judge Steven Merryday admonished defense counsel for manipulating the standard letter spacing in their document so they could squeeze in more words but stay within the page limit. Highland Holdings, Inc. v. Mid-Continent Cas. Co., No. 8:14-cv-1334-t-23TBM (M.D. Fla. June 23, 2016). An excerpt is pasted below, along with a link to the full document.

I think the court should switch to a word limit. It might not solve all problems, but it removes the incentive for authors to use these tricks:

  • manipulate line-spacing (use 1.9 line-spacing instead of true double-spacing, for example)
  • manipulate font size (use 11.5-point font instead of 12, for example)
  • manipulate margins (use 0.9-inch margins instead of 1-inch margins, for example)
  • pick smaller fonts (use Garamond instead of Times New Roman, for example)

and a trick I’d never seen until now

  • manipulate the letter spacing

I switched to a word count on student papers many years ago and am glad I did.

Excerpt:

Mid-Continent’s response (Doc. 50) to Highland Holdings’ motion for summary judgment is disguised as a paper that conforms both to Local Rule 1.05(a), which requires each “paper[] tendered by counsel for filing [to] be typewritten, double-spaced, [and] in at least twelve-point type,” and to Local Rule 3.01(b), which limits the length of a response to “not more than twenty (20) pages.” Although neither rule explicitly proscribes manipulative letterspacing,[1] the Local Rules assume that counsel engages in no manipulation to evade the effect of the rules and assume counsel’s use of the standard space between consecutive letters. Quite transparently, Mid-Continent’s response manipulates the space between consecutive characters in the response and adds approximately two words to each line. Tactics such as Mid-Continent’s letterspacing contribute to a burgeoning set of Local Rules, a phenomenon caused not by persnickety judges but by parties’ relentless efforts to gain an advantage by subverting a set of rules designed to ensure parity. Counsel is admonished; an attempt to subvert the Local Rules exposes the offending counsel to sanction.

[1] “Letterspacing (also known as character spacing or tracking) is the adjustment of the horizontal white space between the letters in a block of text.” Matthew Butterick, Typography for Lawyers 92 (2d ed. 2015).

Full text of the order is here.

Hyphens, ellipses, and word counts

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According to reliable style manuals (I’ve cited four at the bottom of this post), writers should use the en dash, not the hyphen, for number spans.

  • With a hyphen (wrong): 343-44
  • With an en dash (right): 343–44

I don’t know if you can see the difference, but the en dash, the correct mark, is longer than the hyphen. Although I agree with the rule, I’ve recently learned something that could affect your choice of horizontal mark.

  • With a hyphen, Microsoft Word counts this as one word: 343-44
  • With an en dash, it counts it as two: 343–44

You get a 50% savings with the hyphen. In a lengthy brief subject to a word count, you could save some words by using the hyphen.

But wait. There’s more.

Do you know the difference between the ellipsis symbol (…) and the Bluebook ellipsis (. . .), which is just three periods with spaces? For example:

  • Bluebook: The court . . . concluded
  • Ellipsis symbol: The court … concluded

In Typography for Lawyers (cited below), Matthew Butterick recommends the ellipsis symbol. You probably never gave it much thought, but check the word counts:

  • With periods and spaces, Word counts this as six words: The court . . . concluded
  • With the ellipsis symbol, it counts it as four: The court … concluded

You save two words every time you use the symbol instead of periods and spaces.

A former student alerted me to these two strange word-count anomalies and said, “On my last brief to the Seventh Circuit, these two tips cut off close to 200 words, and I ended up 119 words under the limit.”

_____

  • Bryan A. Garner, The Redbook: A Manual on Legal Style § 8.13 (3d ed. 2013).
  • Joan Ames Magat, The Lawyer’s Editing Manual 43 (2008)
  • Chicago Manual of Style § 6.78 (16th ed. 2010)
  • Matthew Butterick, Typography for Lawyers 49, 53-54 (2010)

Headings, part 1: Kinds, Typefaces, and Placement

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Nearly every legal document can benefit from clear, consistent headings. The guidelines here are particularly useful for memos, motions, and briefs. In part 1, I describe two kinds of headings, give typeface advice, and offer suggestions for placement and alignment. I’ll discuss two kinds of headings: topic headings and explanatory headings.

Topic Headings
I use the name topic heading for single-word or short-phrase headings that identify topics, like Argument, Discussion, and Statement of Facts. Because a topic heading isn’t a complete sentence, it doesn’t take a period, and you typically capitalize each main word (Initial Caps). I use the mnemonic C-A-P to remember to capitalize everything but conjunctions, articles, and prepositions. The heading above this paragraph is a topic heading.

Topic headings should stand out from the body text, and here are three good options. (1) Use boldface. Yes, ALL-CAPITALS and underlining are common for topic headings, but if you follow modern typographic principles, you’ll avoid them: they can impede reading and are vestiges of the typewriter. (2) Make topic headings slightly larger than the body text by 1 or 2 points, then add boldface. (3) Use a contrasting font (my preference).

A contrasting font? Yes. If the body text is in a serifed font like Cambria, Garamond, or Century Schoolbook—and it probably should be—then topic headings in a sans-serif font like Calibri, Tahoma, or Verdana will really stand out.

Topic headings designate the major sections of a legal document. For example, in a motion for summary judgment, the topic headings might be Introduction, Statement of Facts, Motion Standard, Argument, and Relief Sought. Because of their nature and the way they’re displayed, they don’t require numbering.

Topic headings are often centered, but that’s not a rule; it’s merely a common convention. Knowing, as we do, that many readers will read memos, motions, and briefs on a screen, and knowing that screen readers have a top-left viewing preference and skim a lot, it makes sense to put topic headings on the left margin. That’s what I do.

Legal documents often use explanatory (point) headings.
I use the name explanatory heading (and point heading) for the full-sentence headings and sub-headings that break up a discussion or argument. The persuasive point headings in motions and briefs are the most common types of explanatory headings, but lawyers use non-persuasive explanatory headings, too. I used one above this paragraph.

If a heading is a complete sentence, and an explanatory heading generally should be, then it takes a period. If it’s a sentence, use sentence case, capitalizing only the first word. DON’T SHOUT AT THE READER WITH ALL-CAPITALS, and Avoid Using Initial Caps For Explanatory Headings Because It Looks Odd.

The best way to make explanatory headings stand out is to use the same (serifed) font as the body text but to emphasize it with boldface, bold italics, or italics. That gives you three outline levels beneath the topic headings. Generally, place the first-level explanatory heading on the left margin and indent each lower level one more tab length.

As you format explanatory headings, keep these tips in mind: (1) Avoid over-indenting. If you indent more than three tab lengths, you spoil the left-alignment screen readers and skimmers prefer. (2) Keep explanatory headings to three outline levels if possible. It simplifies things for the reader and helps prevent over-indenting. (3) Use indentation, not mere tabbing, so subsequent lines of text align with the first. Look at these examples.

Indent

Yours should look like number 1.

_____

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