Nerdlaws: Solicitation of Public Comment
This is a preview for the best and most useful series of posts EVER.
No lie.
And I've told you a million times that I never exaggerate.
This series was inspired by a beer commercial and a sitcom, so you know it has to be good.
You may remember the Miller Lite commercials about the "men of the square table," celebrities and former athletes who promulgated various "Manlaws" for their beer swilling, sports watching acolytes.
Or perhaps you are a fan of "How I Met Your Mother" and have read "The Bro Code" -- a handbook by the "playah" Barney Stinson concerning the finer points of being a "Bro."
(I recommend the audio version read by Neil Patrick Harris who plays Barney. Hilarious. But I digress.)
Here at the Appellate Record, instead of "Manlaws" or a "Bro Code" we propose to codify "Nerdlaws."
With your input, the blog will set out the finer points of the art and science of "The Appellate Brief"--things like fonts and white space and headings and issue drafting and crafting good sentences.
You know, Nerdlaws.
I am at no shortage for such Nerdlaws, but it would be so much more educational for me if I had your ideas concerning what an ideal brief looks like:
- What fonts and typographical choices?
- How much white space?
- Declarative headings or no?
- The proper care and feeding of bullet points
- Multi-sentence deep issue or single sentence simple issue?
- And the ever contentious use of footnotes for citation of authority
Interestingly enough, my own Nerdlaws do not always comport with the court rules. Courts would have better looking, easier-to-read briefs if they would provide a bit of flexibility in formatting. Who knows? The Nerdlaws might become the best practices to change the court rules.
Give it some thought, and propose your own Nerdlaws in the comments. (You may remain anonymous.) You can also hit the link in the side bar and send me an e-mail.
As for the first Nerdlaw, stay tuned and I will answer the question of why you ought never let Bill Gates write your brief.
Welcome to the Appellate Record-- --the online community and virtual watering hole for appellate lawyers and anyone else who is comfortable with their inner law nerd.
I would suggest checking out Matthew Butterick's Typography for Lawyers website for sure, at typographyforlawyers.com. For a more comprehensive discussion of just about all of the issues you've highlighted, I would suggest getting a copy of his book when it comes out in November. I like to think of it as the Strunk & White for good document design.
Disclaimer: I am the publisher, so I may be a bit biased. But as a former Texas practitioner, I feel like my fellow bar members will appreciate what Butterick has to offer.
Thanks for the comment, Jason. And publisher or not, it sounds like great resource. I look forward to getting a copy.
When you say "white space," what do you mean?
My guess is that appellate briefs would be more readable with wider margins and narrower line spacing -- see, e.g., the bound briefs submitted to the U.S. Supreme Court. The magic is not in the folded booklet paper. It's that the briefing rules require the text in those booklets to be formatted like a real book, not a wooden brief.
Don, you have the meaning correct. How much "white" is there on the page and where is it? How much space between lines? How wide the margins? How much space between paragraphs? How much space between a heading and the following text to which it belongs?
Fonts: My personal favorite is Stempel Garamond, but usually use a Century font per SCOTUS LR 33(1)(b) for briefs. At the Appellate Advocate, we recently switched to a sans serif font (13 pt. Calibri) to increase readability.
White Space: Robert Dubose has convinced me more is better, but not sure if the 4 1/8 by 7 1/8 inch text field required by SCOTUS LR 33(1)(c) isn't a bit much. 1.5 inch L/R margins results in a text field of 5.5 inches wide, which looks a little more reasonable to my eye.
Declarative headings: I used to be more in favor of "whether-ized" headings, but now fully support and employ declarative phrasing. Simpler and more helpful to the reader it seems.
Bullet-points: Used to hate them as amateurish, but now try to use with discretion where appropriate. That said, I still usually favor an indented, numbered list if at all possible.
Deep issue: With all due deference to Bryan Garner--who has forgotten more about typography, legal writing, and the law in general than I will ever know--I hate the "deep issue." Just seems antithetical to our role as appellate lawyers. It is our job (in theory if not always in practice) to elegantly distill, not clutter. Will admit a master can do it fairly effectively, but it still comes across to me as obfuscating the real kernel of dispute. Great blog post and ensuing debate I came across a few years ago on this: http://j.mp/cTwIeo
Footnotes: I've never fully understood the argument that footnotes disrupt readability as they entirely remove citations from the text field; thereby leaving behind only argument. However, for those of us who often times are as persuaded by the citation as the argument, I fully agree that having to bounce up and down between the text and footnote fields can be crick-inducing. Thus, in briefing I try to never drop a citation-only footnote, but instead reserve that space for only tangential or nonessential exposition on the main point. In legal academic writing, however, I still strongly prefer everything to be in footnotes (helpful in drawing out whether the article is just the author "on the law" or a well-supported position). That said--and as a nod that my personal view of this topic is firmly within a diminishing minority--at the Appellate Advocate, we now advise all our authors to footnote sparingly in favor of in-text citation as they would in a legal brief. In addition, we place our footnotes within the text field directly below the affected paragraph (as, for example, Westlaw & Lexis do) in an attempt to reduce any disruption to the reader.
In typical fashion, Drummond brings his "A Game." Come on, peeps. Time for the lurkers to come out of the peanut gallery and be counted.