Nerdlaw: Kill All The Typewriter Rules (Part Deux)

In the last post on this topic, I advanced the modest proposal of completely redoing all the briefing rules. 

  • Chuck double spacing. 
  • Chuck one inch margins
  • Chuck page limits
  • Adopt word counts instead of page limits

This drew a comment or two on Linked in and other places to the effect that the rules probably got this way in the interest of making briefs easy to read.

What could be easier to read than humongous fonts on a double-spaced page, right?

Not so!  After the jump, you'll find out why our briefing rules would not survive a Daubert objection if readability were the goal upholding them.

So, what's the big deal about half-inch margins, double spacing and ginourmous fonts? 

Fixation pauses.

There.  I said it.  Fixation pauses.  It had to be said.

What are fixation pauses?  I'm glad you asked:

When we read, our eyes shift from one set of words to the next.  Between each set, our eyes must pause before moving to the next set.  These stops are called "fixation pauses."  If a line of text is too short, readers cannot effectively employ their peripheral vision, and that appears to reduce legibility.  In contrast, if a line of text is too long for the type size, readers must pause for a greater length of time while their head moves and their eyes search for the beginning of the next line.  When there are fewer fixation pauses, there is greater retention and comprehension.

Ruth Anne Robbins, Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents, 2 J.A.L.W.D. 108, 122 (2004). 

The same research quoted by Professor Robbins in her paper shows that fonts bigger than about 11 point are actually harder--not easier--to read.  They require more time.  And a line of text in a 6.5 inch line length (i.e., one inch margins) involves undesirable fixation pausing. And yet we do both--giant fonts and long line lengths.

But we don't stop there. We use double line spacing too, and the reason is not because it is the most legible text possible now.  It was just the most legible text possible in the age of the typewriter:

Most lawyers use either double-spaced lines or single-spaced lines--nothing in between. 

These habits are held over from the typewriter era.  Originally, a typewriter's carriage could only move vertically in unites of a single line.  Therefore, line-spacing choices were limited to one, two, or more lines at a time.  Double-spacing became the default because single-spaced typewritten text is dense and hard to read.  But double-spacing is still looser than optimal.

Most courts adopted their line-spacing standards in the typewriter era.  That's why court rules usually call for double-spaced lines.

Matthew Butterick, Typography for Lawyers 139 (2010).

Again.  I'm sorry, but it had to be done.  I went "Butterick" on you.  His website and great new book are raising the standard for legal typography. (I have the book, and I highly recommend it to learn about what choices make for good typography.  Fuller review to come.)

And I'm going to go Butterick on you again.  In a future post, Butterick is going to take his mad, typographic skillz to a recent slip opinion from our very own Texas Supreme Court.  (I'll give it a go too, but I'm just an amateur.)

And when we do, you'll have a before and after comparison for how document design changes the way you perceive and absorb information.

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Comments (4) Read through and enter the discussion with the form at the end
doug - December 14, 2010 12:42 PM

Why the double spaces on this blog posting then?

Kendall - December 14, 2010 2:57 PM

@Doug, the body text is not double spaced (at least on my screen). There is some extra space between bullets and paragraphs, which I think most typographers would advise.

But it does raise an interesting question of whether and to what extent the research about print reading transfers and applies to screen reading.

Emily - January 25, 2011 9:30 AM

How do you feel about two spaces after a period or other ending punctuation mark? A recent article on Slate.com (http://www.slate.com/id/2281146/) condemned this practice, but I am unconvinced.

Kendall - January 25, 2011 9:52 AM

Butterick tells me it is wrong, wrong, wrong, and he makes a very convincing case. I am trying to learn not to do it, but I am actually old enough that I actually learned to type on a typewriter in a typing class. So my thumb on the space bar has a mind of its own. I have to use search and replace before each print to find and root out any double spaces.

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