Nerdlaw: Kill All The Typewriter Rules
Imagine that you have been hired to file a brief in a far flung jurisdiction where you have never practiced before.
You proceed, conscientiously as always. You analyze the record. You thoroughly research and understand the law. You outline your main points and your arguments, and you crack out a blue ribbon first draft.
It's a thing of beauty--all those digital ones and zeros transmuted into crisp and persuasive prose in a clear and professional font on well-designed pages.
Things are going swimmingly until you pick up the rules of court where the brief is to be filed. The rules say:
All briefs to be filed in this Court shall be typewritten, double-spaced, in 12 point courier or such other mono-spaced, slab serif 12 point font as is customarily available on a Smith-Corona or IBM typewriter.
Of course, you'd be horrified. "Nobody uses typewriters to write briefs any more," you'd observe. 'Why," you would ask, "with all the word processing and desktop publishing technology we have available, why should a legal brief look like an undergraduate term paper instead of like a really good book?" And "What kind of backwards, one-horse, jackwagon jurisdiction has rules holding over the era of the typewriter?"
Actually, nearly all of them. And the result is ugly briefs and deforestation. After the jump, you'll find out why hardly any jurisdiction is immune from the typewriter effect.
I received an e-mail from a friend and superstar appellate colleague the other day. Like me he is a fan of the elegant looking brief, and he was bemoaning the appearance of a brief that he was filing in a jurisdiction with rule-mandated ugliness.
The jurisdiction, which shall remain nameless (Georgia, how could you?) required double spaced Times New Roman everything. Just take a look at the sample. No chunking, no emphasis or de-emphasis. Nothing to help the reader organize the information, wasted white space and no easier to read or understand.
And there are actually jurisdictions that require briefs in courier or monospaced fonts. Really? Who would voluntarily write in such a font? I'd rather sleep with the fishes.
But before you get on your high horse, Texas, your "new" appellate rules are now 13 years old. Why do we have page limits instead of word counts? Why do we require double spacing? Why 13 point font?
I'll tell you why: typewriters.
If you're going to let lawyers file a brief, you have to give them a limit. If you don't, mediocre lawyers (i.e., most of them) won't know when to stop. Whole forests will fall victim. In the age of the typewriter that limit was a page limit, because you didn't have a word processor to count words.
But if you give most lawyers a page limit, they're going to try to cheat--cramming the lines together and writing from lot line to lot line. So you tell them they have to double space and have at least 1/2 inch margins--ostensibly because this makes the big, monospaced fonts easier to read.
Seventy years after the first Texas rules, the typewriter effect still holds on. Our state courts still have a page limit and a typewriter era font size requirement. A petition for review, for example, is limited to 15 pages and must be at least 13 point font. But I can write a dense, unreadable 15 page brief that conforms to the rules, or I can write an elegant and comprehensible 20 page brief with fewer words.
And if you let me format the brief correctly, for maximum readability, it will be fewer pages and not double spaced. Save the Trees!
My modest proposal would be to eradicate all the typewriter era rules in which length and content were controlled by page count, double spacing, typewritten default margins and font sizes.
But if not 12 to 14 point font and double spacing in 1/2 inch margins, what should the courts be requiring? There are all these people who make a business out of printing stuff people actually want to read--book publishers. They have a whole body of research on what makes a readable text.
A preview of the ideas in the upcoming posts can be found in Ruth Anne Robbins' articles:
- Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents; and
- Conserving the Canvas: reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies
There is absolutely no reason other than bad habit--embodied in our court rules--why a legal brief should look like an undergraduate term paper instead of like a really good book.
Coming soon, a Daubert objection to our typewriter era briefing rules.
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I'm a little late to the discussion, but here are a few thoughts.
13 pt font: I imagine that some jurisdictions require this size because anything smaller is too difficult for some judges to read.
Double-spaced: Perhaps this makes things easier to read as well. But I much prefer single-spaced. I like having as much information on the page as possible (while still having white space), so that I can read it in chunks/groups of information.
It is irritating to see a page that has only part of one paragraph because the page is double spaced, some (maybe even half) of the page is footnotes, and the rest is a 5-8 sentence paragraph that began on the page before and ends on the next page.
One benefit of double spacing is you can easily write notes on the page. But I'd prefer a single-spaced page with a wide margin on one side (kind of like SCOTUS briefs) for note taking.
I haven't read a lot of courts' rules, but I'd be interested in hearing your take on the SCOTUS rules, which seems very different from many of the rules I have read.
James, before the age of the word processor, I am sure that readability or length limitation was the motivating factor behind the double-space-big-font approach. But actual research shows that the eye absorbs the text much more easily when it is a smaller font, shorter line length and shorter line height. Look for an upcoming post on the topic--a kind of Daubert objection to the prevailing court rules.