Your Type May Be Ripe For Review

By Chris Mincher

When it comes to typography, attorneys seem to generally pursue two goals: (1) don’t break any court rules; and (2) don’t do anything too different from everybody else. Obviously, staying in compliance with court direction is an imperative, but rigidly conforming to a standardized format never made much sense to me — considering the hundreds of pages of briefings appellate judges and clerks slog through day-in, day-out, why would anyone want theirs to blend into the pack? It would be one thing if the status quo was the unquestioned, consensus pinnacle of composition perfection, but it’s not.

To be sure, there’s also not anything especially wrong with the textual configurations that most attorneys default to. No judge, clerk, or court official will give a second thought to them, meaning they’re safe — but they also miss an opportunity to make a distinct, positive impression.

I realize I am far from the first person in the legal profession to write about this subject. Some courts have even taken it upon themselves to provide members of their bars with detailed guidance on typography. All practitioners would also do well to pick up Matthew Butterick’s Typography For Lawyers, a wonderfully practical and comprehensive resource for these issues.

Of course, surveying the various commentary out there reveals that different sources have different opinions on different typography methods. That shouldn’t be too surprising, but some attorneys may characterize such divergence of opinion as proof that typography is, at its core, simply a matter of personal taste and therefore not worth spending time on. This misses the point — the usefulness of typography is not in creating a set of unanimously endorsed rules, but, rather, getting writers to simply think about what they’re doing.

For whatever reason, lawyers who devote countless hours exploring and developing meticulously reasoned legal arguments for their briefings don’t care to make similarly reasoned decisions about what they want their briefings to actually look like. But just how any minimally competent practitioner would craft a brief’s content, crafting a brief’s presentation is a bit of a process: surveying all the available options, considering the benefits of drawbacks of each, experimenting with various alternatives, and arriving at a deliberate preference. Doing so, you might actually find that, although you’ve been blindly following the same typographical habits imposed on you by the partner in your first job out of law school, you actually favor something else. More importantly, so would your readers.

Before this post gets into the details of various typographical topics, some ground rules: First, our canvas for today is a blank 8½-by-11-inch sheet of paper — for now, no messing with those tiny U.S. Supreme Court briefing booklets. Second, I am assuming that, by virtue of your reading this on a blog, you have a computer and use that computer to draft your briefs, so don’t expect any tips on optimally setting the carriage of your 1933 Remington Rand. Third, the suggestions herein are not meant to be evaluated individually; rather, to keep a proportionate and balanced look, an adjustment to one typographical element may require a corresponding, complementary adjustment to another. Trying out new typographical ideas requires a holistic approach.

With that, let’s start with some basics.

Type Size and Font

To correctly apply appellate rules on type size, it’s first necessary to understand the difference between uniformly and proportionally spaced type. Uniformly spaced, or “monospaced,” type gives every character the same width — a lower-case “i” (including additional surrounding white space) takes up the same horizontal room on the page as a capital “W” (along with its proportionally smaller cushion of white space). Obviously, those letters do not need the same footprint in your document, so where did this wacky practice originate?

From the source of 95 percent of all typographical evils: the dreaded typewriter. A typewriter’s keys were all the same size, so the characters on the keys were all the same size as well. Monospaced fonts were thus created to accommodate a mechanical limitation, not because they offered any aesthetic benefits. As discussed below, there is no good reason to ever use them this day in age, so, although both the Maryland and federal rules set separate size parameters for uniformly spaced type, these can be ignored.

(Side note: The use of monospaced characters on typewriters led to another obsolete yet stubbornly persistent practice — putting two spaces between sentences. With uniformly spaced type, a period has the same space between the last letter of the sentence it’s finishing and the first letter of the next sentence. In this case, an extra space helps create an easier visual cue signaling the start of a new sentence. However, these days, word processors and proportionally spaced fonts place the period flush with the previous letter, thereby leaving plenty of room to serve that function. Putting an extra space on top of that is absolute overkill, and if those gaps happen to coincidentally align vertically, it can lead to a disrupting ribbon of white running down your document. Two spaces are therefore not only totally unnecessary, but also a potential obstruction to readability, and you should never, ever use them. Anyway, just wanted to get that off my chest.)

Proportionally spaced fonts assign each character the amount of horizontal area it actually needs. Because these are the fonts you should be using, you have to abide by the corresponding appellate dictates about type size — at least 13-point in the state appellate courts, see Md. Rule 8-112, and at least 14-point in the federal circuit courts, see Fed. R. App. P. (“FRAP”) 32(a).

Now comes the big decision: Which font? There are an overwhelming number of typefaces at your disposal — if you’re using Microsoft Word, there may be more than 150 built right into your software. To make things a bit more manageable, the Maryland Court of Appeals has set forth a number of “approved” fonts, but even these are “suggested, not mandatory.” Notice that Times New Roman is but one of these 16 suggestions.

Despite some perception out there to the contrary, the Federal Rules of Appellate Procedure don’t require Times New Roman (or some variant of it) in briefings either. When FRAP 32(a)(6) says, “A brief must be set in plain, roman style,” it’s simply saying that the text can’t be entirely bold, italicized, capitalized, narrow, or condensed — not mandating typeface mediocrity. Indeed, the only hard-and-fast rule under the Federal Rules is that a proportionally spaced font must have “serifs,” id. at (5), which are small little lines that accent the tips of character strokes. “Sans-serif” fonts, which don’t have the lines, don’t fly at the federal appellate level in proportionally spaced fonts (except in headings or captions, but for now we’ll bypass the question of using multiple fonts).

There is an endless smorgasbord of fonts laid upon the typography table for connoisseurs to, like an pretentious oenophile at a wine tasting, sample, judge, and offer preposterously nuanced opinions on. But exploring the universe of non-system fonts out there can take considerable time and effort, with decreasing returns. For the busy attorney who just wants to bump the quality of his or her briefs up a notch, it’s fine to stick to the plethora of options available right there from the pull-down menu in your word processor. As such, for the sake of brevity — as well as appeasing lawyers’ crippling fear of doing something too unorthodox — I’ll artificially restrict today’s font discussions to those on the Court of Appeals’ “approved” list that can be found in Microsoft Word.

First, however, a bit about Times New Roman. Although the font is ubiquitous in professional writing, it wasn’t designed for such a general purpose. Rather, it was designed for London newspaper The Times to be a legible-yet-efficient way to cram more letters onto each line. (As a former print journalist, I can tell you how important those few extra words on the page can feel sometimes.) It’s therefore more narrow and horizontally compact than is needed in contexts where space isn’t at a penny-pinching premium. (If you’re using narrow fonts to try to cheat a page limit, meanwhile, you may want to review this advice of Karen Federman-Henry on the blog earlier this year.)

That said, Times New Roman isn’t a disastrous choice by any means; its biggest sin is just being boring and overused. You could do a lot worse than Times New Roman… and, in fact, the Maryland Court of Appeals explicitly allows you to. For these following fonts, although the venerable court has ostensibly given you permission to use them, resist the invitation.

Arial: Arial was developed as Microsoft’s blander, more generic, no-licensing-fee alternative to Helvetica, a font so successful that it became a sort of touchstone for the global, multicultural, modernist era. (Those with an hour-and-a-half to spare are encouraged to check out this entertaining documentary about the Helvetica’s history and omnipresence.) Arial is a perfectly comfortable, easygoing, versatile font, much in the way your favorite T-shirt, pair of jeans, and set of loafers makes for a comfortable, easygoing, versatile outfit. Question: Would you wear your favorite T-shirt, jeans, and loafers to an appellate oral argument? Of course not. Don’t use Arial for the same reason. (As a sans-serif font, Arial isn’t available to you at the federal appellate level anyway.) For a full take-down of Arial, check out this particularly disparaging commentary.

Bookman Old Style: The Court of Appeals has also authorized the use of Bookman Old Style, a curvy, serif font that resurfaced in the ’60s and ’70s as a way to convey a sense of relaxed sophistication. It’s a mellow, sunny font perfect for a little light reading as you let a couple buttons loose on your designer jumpsuit and stretch out on your luxury earth-toned shag carpet. In other words, the Bookman font family is outdated and kind of cheesy. If you’re going to use a Bookman font, consider figuring out a way to have your brief softly play a little James Taylor for the judges as they flip through it.

Century Gothic: Yes, it’s been well-documented that Century Gothic can save you money on ink (though not in the federal circuit courts, because it’s sans-serif). But let me ask you this: Do you want your brief to the highest court in the state to use the same font as Weezer? There’s only one answer to this question.

Courier New: Courier New is a monospaced font that was made to replicate the output of typewriters. Courier New’s acceptable uses in today’s world are therefore pretty much limited to props in Mad Men, yet a baffling number of attorneys still call upon it for their appellate briefs. In what other context would it be desirable to willingly bind oneself to the mechanical shortcomings of a prior era? If you had a Super Bowl party, would you lock your 60-inch ultra-high-definition television in the closet and force everyone to crowd around as you dialed up the game on your dusty postwar vacuum-tube model? If you were buying a brand-new Porsche, would you ask the dealer, “Hey, this is great, but any chance you could make this sucker run just like a 1972 Ford Maverick?” Sometimes things die for a reason. Courier fonts are such things.

Footlight MT Light: Named after the stage-illumination devices, the Footlight font series has all the gimmicky, antiquated flair of an original English Renaissance manuscript. But, hey, if you’re going to dress up your brief like an addendum to the First Folio, why not go whole hog? For oral argument in defense of your Footlight brief, I suggest, for men, wearing a doublet, duckbill shoes, and a codpiece, and, for women, a farthingale, a bodice, and leg-of-mutton sleeves. Begin your argument with a flamboyant bow or curtsy, and ditch the lame “Your Honor” in favor of addressing the judges as “m’lord” and “m’lady,” as in, “M’lady Barbera poseth a most searching and fair inquiry, yet, I prithee, attend to this humble servant of thy Court as he endeavors prosperous journey through the vexatious boscage of Financial Institutions Article § 10-119, and thou shalt spiritedly agree that Code’s decree doth not displace its common-law brethren.”

Now that we’ve crossed those off the list, what’s left on the approved list that’s actually an improvement from Times New Roman? Give these two fonts a go to gain a typographical edge:

Book Antiqua: Disclaimer: Much how Arial lazily mimics Helvetica, Book Antiqua is a shameless knock-off of another successful font, Palantino. Palantino was designed by a professional calligrapher, so Book Antiqua retains the subtle, fluid grace of ink-written materials, making it a frequent go-to font in all kinds of literature. I don’t know about you, but I — and other appellate commentators as well — would rather use Book Antiqua and have my brief look more like a formal published text than use Times New Roman and have my brief look like there might be a Sudoku somewhere near the back.

Century Schoolbook: First, Century Schoolbook is not related to that half-baked sans-serif standard-bearer of modernist mediocrity discussed above, Century Gothic — Schoolbook was created in 1919 and is commonly used in textbooks, while Gothic was thrown together in 1991 and was commonly used by Starfleet on Star Trek: The Next Generation. Avoid the latter in your briefs (yes, even you hopeless sci-fi nerds out there), but turn to Schoolbook for an enduring, eminently readable typeface with the simple, elegant professionalism of academic works. If you’re nervous about making the switch, take some comfort from the fact that you know at least nine other well-respected attorneys who use a version of Century Schoolbook… the U.S. Supreme Court.

Spacing

My general philosophy is that a double-spaced, one-inch-margins page of text leaves the right amount of the paper blank — just in the wrong place. The trick then becomes to shift the white space to where it is most effective for your presentation without greatly disturbing the size or per-page word counts of your content. Luckily, this isn’t that hard.

First, a question: Why do you double-space text? Chances are, you haven’t actually sampled all the various spacing options and decided that double-spacing gives the ideal amount of room between lines — you’ve just never done anything else. Like all typographical choices, this is not a valid reason for staying the course… and, like a lot of other typographical choices, the reason for the status quo is obsolete typewriter limitations. In this case, the carriage return of a typewriter only moved in increments of one line, so, if you wanted space between lines, you had to leave a full line blank. Again, no one ever decided this was the optimal choice for readers; it was just all the typewriter could do.

Computers obviously don’t have such restrictions — you can set your line spacing to whatever you want. Which is good, because full-line gaps actually set the type too far apart, forcing the text into trenches with equal swaths of no-man’s-land in between. By cutting back on the spacing, you can bring lines closer together for a more cohesive, consolidated appearance. In my experience, however, lawyers react to the suggestion to ditch double-spacing like you’ve recommended they write their briefs entirely in Pig Latin.

This response is likely at least somewhat attributable to the federal circuit-court requirement that documents use double-spacing. See FRAP 32(a)(4). (Combined with the mandated minimum of 14-point type, this makes briefings begin to look a little like children books — but, hey, if that’s all the judges’ poor eyes can take, that’s certainly their prerogative.) Maryland appellate courts, on the other hand, only set a minimum of 1.5-spacing, Md. Rule 8-112(a)(2), which is a splendid distance between lines: enough to keep the text from crashing together, but not so much as to cause your type to look like lane markers in a swimming pool of white.

Go ahead: Drop the spacing to 1.5 and take a gander. Did you notice that your 54-page brief that you just couldn’t make any shorter now fits within the page limit? Don’t put down your red pen quite yet, however — like a cosmetic fat transfer, we’ve only sucked extraneous white space out of one part of the page to inject it back in somewhere more attractive.

Margins

Indulge me in a quick experiment. Take a page of something you’ve typed up with one-inch margins and hold it up to something that has been professionally framed. Proportionally, which has wider borders? Alternatively, the next time you’re at a fancy restaurant, compare your page to one of the courses — chances are, it’s being served on a plate that’s considerably larger than the food itself. What’s up with all this nothingness around the something that you’re supposed to be looking at?

A pretty basic tenet of visual design, actually. Blank space (or “negative space”) sets the featured content (or “positive space”) apart from its surroundings, drawing and focusing the viewer’s attention to it. And you just can’t get the most out of this effect with one-inch margins.

The Maryland Rules allow no less than one inch of space in the top and bottom margins; to accommodate the possibility of extra margin space for binding purposes, the Rules don’t dictate the size of side margins but set a maximum of six-and-a-half inches of text across, the same amount you get with one-inch margins. (The Federal Rules of Appellate Procedure set a one-inch minimum on all four margins, FRAP 32(a)(4), but, given how much extra space will already be in your document courtesy of those Rules, I don’t recommend inserting any more.) It’s a standard length that you’ve likely come quite accustomed to, but it’s also a length that begins to test readers’ patience.

See, people don’t actually read character by character, or even word by word: We read groupings of words at a time, taking an ever-so-slight mental pause after each to connect them together. After three or four such pauses on a line, our brains need to briefly hit the reset button before continuing, or else we quickly tire of the process. Accordingly, it’s been shown that a person’s focus diminishes as he or she continues reading along an unbroken line of text.

In general, six-and-a-half inches of horizontal print starts to push it. Increasing the margins, therefore, can serve two purposes: one, widening the negative space bordering your page to better focus the reader’s attention on your text, and, two, bringing your line lengths into a shorter range that won’t threaten to impact the reading experience. Exactly how much larger to set your margins is a bit of a judgment call, but, as stated above, I think the total amount of white space on a double-spaced, one-inch-margin page is about right, so I try to keep it roughly equivalent. Typically, one-and-a-half-inch margins — combined with 1.5-spacing — gets more or less the same amount of type and space as the default line spacing and margins, but looks a lot better and is easier to digest.

(Don’t believe me? Try it out yourself — take a document page and note where the text ends at the bottom. Then cut the line spacing to 1.5 and increase the margins to 1.5 inches. Where does the text end now?)

Even making just these simple alterations to font, line spacing, and margins can immediately give your briefs greater visual appeal and readability, all in total compliance with Maryland’s appellate guidelines and rules. But these aren’t the only ways to accomplish these goals; if my suggestions don’t do it for you, there are countless other typographical elements that, with a little research, you can learn to tweak for a better brief format. However you do it, be guided by modern, digital-age practices that give your legal work the best presentation — not long-outdated practices adopted to make typewriters tolerable.