Briefly Line Dancing for Lawyers
September 17, 2015
The court rules seem to be clear – except the quotes and footnotes, briefs need to be double-spaced. Aahh….if it were only that simple.
I have written a number of columns talking about typography, and writing for judges who read screens. But I recently had to give some thought to the question of writing and typography in the old-fashioned context of paper, and page limits. It was a trip down memory lane. So many appellate courts have gone to word count limits on briefs that it is a relatively rare thing in appellate practice to come across page limits. However, those limits still apply in many courts, including our state district courts. I thought it was worth continuing the discussion on format and effective presentation with that context in mind.
Format influences our perceptions through the sense of sight. From the earliest recorded literature, we learn the poet’s intense involvement with sight. King David wrote, “Let the words of my mouth, and the meditation of my heart, be acceptable in Thy sight. …” Shakespeare in As You Like It, a play about love and hidden identities, explained love at first sight when Rosalind declared, “[N]o sooner met but they looked, no sooner looked but they loved, no sooner loved but they sighed, no sooner sighed but they asked one another the reason ….” The importance of sight is often-stated and well-supported.
Broadly speaking, typography is the style, arrangement, or appearance of printed letters on a page. Merriam-Webster Dictionary (Merriam-Webster, Inc. 2015). The best advice about typography is simple and important enough that the Seventh Circuit Court of Appeals includes it in guidelines found on the homepage of its website. The court recommends that, “[T]ypographic decisions should be made for a purpose.” Requirements and Suggestions for Typography in Briefs and Other Papers at 3, available at “Guidelines for Briefs & Other Papers”. The court’s homepage also includes a good article about legal writing that encourages lawyers to “paint” with print. Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, J. of Assoc. of Legal Writing Directors (Fall 2004) . Many other thoughtful pieces on typography are also available. See, e.g., Robin Williams, The PC is not a Typewriter (Peachpit Press 1995); Matthew Butterick, Typography for Lawyers (Jones McClure Publishing 2010); see also Butterick’s website.
There is no fixed measuring stick with “good” typography on one end and “bad” typography on the other end. One commentator says good typography is whatever “reinforces the meaning of the text.” Matthew Butterick, What is Good Typography?.
Formatting includes the important feature of line-spacing and things like the number of spaces after punctuation and the use of full-justification. In the days of typewriters, two spaces after punctuation was standard because it broke up the monospaced type. Today, with proportional type styles and full-justification, the use of two spaces creates “rivers” of white down the page. Most commentators are recommending one space after punctuation. Left-justification is praised over full-justification because it is easier to read and creates variety and contrast.
Most court rules require text to be “double-spaced” and allow “single-spaced” text for footnotes and block quotes. Fed. R. App. P 32(a)(4). These requirements refer to line-spacing, which requires an understanding of “leading” (rhymes with “sledding”). Leading is the space between lines of text. Historically, typeset printers placed strips of lead between the lines of type to achieve the desired spacing. Today, the only court that has precise “leading” rules is the United States Supreme Court, which requires 2-point or more leading between lines. Sup. Ct. R. 33.1(b).
Experts agree that optimal line-spacing is somewhere between single and double-spaced, approximately 120 percent. But that is not what most court rules require. They say “double-spaced.” And in that imprecise prescription, there is room for creativity.
Word processing programs allow a writer to choose among several options for line-spacing—single, double, exactly, multiple. Many writers assume that single and double-spacing are multiples of the font point size, e.g., if 12 point font is double-spaced there are 12 points between lines or 200 percent. (As a reminder, there are 72 points to an inch; thus, 12 points is 1/6 of an inch and 24 points is 1/3 of an inch.) This assumption is incorrect. In Microsoft Word, the line height and the amount of leading varies with the typeface style. Line heights in MS Word usually range from 110 percent to 135 percent of the font size for “singe-spacing” and 220 percent to 270 percent of the font size for “double-spacing.” Jan Berinstein, Understanding Line and Paragraph Spacing in Word (Aug.1, 2010). For example, Times New Roman12 point font “single-spaced” will result in lines that are somewhere between 13.8 to 14.4 points in height and, when double-spaced, somewhere between 27.6 to 28.8 points apart. Id.In WordPerfect, “Double spaced” is 2x line height, but line height typically varies based on the size and type of font used and implicit leading rules. Barry MacDonnell, Toolbox for WordPerfect. In other words, there is extra “leading” space baked-into a “single-spaced” font choice, and at least some word processors appear to just multiply that extra leading spacing when doing double-spacing instead of automatically defaulting to double-the-font-size white space between lines of text.
When brief length is regulated by number of pages, the advocate’s choice of typeface style and sophistication in selecting among line-spacing options makes a difference. At least one legal commentator advocates that line spacing rules for legal documents should be interpreted arithmetically by using the exact setting. Butterick, Typography for Lawyers, at 204.
Courts have not always agreed with lawyers who have filed briefs with line-spacing that is exact. For example, one judge rejected a brief for violating a local rule requiring double-spacing because the number of lines on a page were more than what a Word document employing the double space setting would produce. Michael C. Smith, Double Means Double: Filings Struck for Failure to Comply with Line Spacing Rules (Apr. 29, 2010), available at http://mcsmith.blogs.com/eastern_district_of_texas/2010/04/double-means-double-filings-struck-for-failure-to-comply-with-line-spacing-rules.html (reporting on Judge Leonard Davis’s decision in VirnetX v. Microsoft). In another case, the court admonished counsel for a similar choice where the court had permitted parties to file a 35-page brief, 10 pages beyond the normal 25 double-spaced pages limit for such briefs. The judge commented that it “should not have to waste its time policing such simple rules …. Counsel are expected to follow the Court’s orders both in letter and in spirit.” In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, Case No. 2:10-md-02179-CJB-SS, MDL 2179 (E.D. La. Sept. 15, 2014) (J. Barbier), p. 3. The Court’s order concluded that any future briefs “using similar tactics” would be struck. Id. On the other hand, another judge simply allowed the opposing party to file an extra 5 pages when they called the court’s attention to another party’s use of exact line-spacing. Bill Donahue, Attys Convince Judge that Size Matters in Gap Trademark Suit, Law360 (May 3, 2012) (report on Judge Paul A. Engelmayer’s decision in Lopez v. The Gap, Inc.).
In those jurisdictions or forums where certain documents are limited to a set number of double-spaced pages, the completeness of content should not be dictated by what particular word processing program is used to prepare the document. Keep in mind that how much will fit in x number of “double-spaced” pages in some popular word processing programs is very different from others (even using the same exact font and type size). Thus, choose your word processing program and font wisely if faced with the issue of making your desired arguments in a “tight fit,” or use true arithmetic double spacing (“exactly” double the font point size) but be prepared to explain to the relevant authority the details of typography and software programs and why “double-spacing” is not always what it seems.
Reprinted with permission of Minnesota Lawyer ©2015
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