The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Several months ago, I was working on the next in a series of articles for Texas Lawyer. I had decided to try and write a "how to" article about editing.

This, of course, was a mistake, because Murphy's law holds that an article on editing will take longer to edit than any article I've ever done.

But now I'm truly in the big time because the article is being carried in both the Texas Lawyer and the National Law Journal.

(This, of course, is in addition to the strong freshman year I'm having as the big man for the Delaware State Hornets. Although they grossly exaggerate my height by listing me at 6' 10").

So, I've got that going for me.

Which is nice.

Basically the article is a list of techniques, many suggested by you readers, to make anyone a better editor. Most of the tricks are designed to make you slow down and think critically about what you actually put on the page rather than just breezing past what you thought you said.

Since I finished the article I picked up the book "Thinking Fast And Slow" by Daniel Kahneman, a Nobel laureate in economics. I'm only just into the book, but I already wish I had read it before writing my own little piece.

Kahneman describes how our brain has two different systems, "System 1" and "System 2" for short.

System 1 is that part of the brain that does things, sometimes remarkable things, intuitively and without conscious thought.

System 1 can tell in an instant if your spouse is angry when he/she calls. System 1 can tell if you were the subject of the conversation before you came into the room. System 1 may have largely driven you to work this morning. System 1 is what slams on the breaks or recognizes danger even before your conscious mind knows why.

But System 1 is the part of the brain that edits intuitively and with too little analysis or criticism.

System 2 is the conscious, complex, analytical part of the brain.

System 2 is the part of your brain required to multiply 47 times 13.

System 2 is the part of your brain that a non-master chess player uses to evaluate a position

System 2 is the part of your brain that makes the more careful editor. The judge, who does not know your case, will be trying to process much of the information with System 2 and does not have the System 1 intuition you have after living with the case for so long.

As I think on it now, many of the editing hints in the article are just ways to keep System 1 at bay and keep System 2 awake. I wish I'd read the book first.

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There was awhile there when I thought I didn't like history.

Like when someone was trying to teach me history and not doing a very good job of it.

History taught badly is a procession of events that I don't care about listed by dates that I cannot remember.

But actually, I love history.

I love it when I learn it myself or when it is taught well.

History taught well is a story--a buffet of characters that are related by their ideas and the times in which they lived.

It is drawing connections between Napoleon and Beethoven, connections between Degas and Debussy, between Churchill and Thatcher.

Which is why I'll delete dang near all the dates from your brief if given half a chance.

Let me explain.

No. It's too complicated. After the jump, let me sum up.

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Recently, we left poor, Little Miss Muffet on the edge of a cliff. Her adoptive step-father, Dr. Muffet, had suffered a judgment in which his parental rights were terminated. But Dr. Muffet's lawyer "handles his own appeals." So he wrote the brief himself.

(I say "he" only because this attitude is decidedly old-school, and bespeaks a certain ego, which makes this lawyer presumptively male.)

Not that there's anything wrong with that.

But the brief in my (mostly) fictional story had a big problem.

And no, it wasn't the extraneous dates or the legalese or the gratuitous adverbs. Those are just symptoms that make up the "big problem."

After the jump is the big reveal on what the big problem is.

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There's something wrong with the story that follows after the jump.

Actually, there's one big thing wrong, which is the product of a lot of little things.

To get the full effect, imagine that it is set out in 12 point, double-spaced, Times New Roman with one inch margins.

In a post (or posts) to come, my head will explode about why we lawyers write so poorly. Is there a law somewhere that says we must  . . . .

But I digress.

After the jump is the story. Any resemblance between my story and a brief you may have sent me to edit is purely coincidental.

Or at least really really exaggerated to make a point.

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Few things make me feel more self-satisfyingly ensconced among the cultured illuminati than the New York Times Book Review.

And yet even the Book Review has outdone itself this time.

Imagine my joy when, cup of locally roasted, fair trade, freshly ground-and-brewed organic coffee in hand, I turned to the essay by Alexandra Horowitz in the October 9 edition of the Book Review: an essay on Footnotes!

Although one professor has described footnotes as a "subversive breed of mice," the only thing that makes my heart go pitter pat more than a discussion of footnotes is an essay on footnotes in the New York Times Book Review.

Like any good footnote, the Essay makes reference to other works: books by Anthony Grafton and Chuck Zerby  detailing the history of the footnote.* It even cites an example of the Mother Of All Footnotes from the "History of Northumberland"--a footnote with footnotes that is said to range on for 165 pages.

I need a moment. . . .

Talk amongst yourselves. . . .

I'm all verklempt.

After the break, a few notes of praise and observation on Alexandra Horowitz's Footnote Essay!

I know! Too good to be true!

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Well, I've had a pretty busy fall, but every time I get a few moments and have a few spare brain cells, I've been making my way through Just My Type, the book about fonts that I wrote about some time back.

Written as a series of stories or episodes, the book traces events from the first information age: the explosion of written communication and literacy.

If you think about it, books have gone from rare, one-off works of art to commodities that exist in the 1s and 0s of digital format. During that time:

• Written language shrugged off the necessity of handwritten copies,
• We adopted mechanically formed moveable type,
• We changed the form of that type and created letter shapes that no longer needed to copy the pen strokes of a scribe
• We improved those fonts to make them more beautiful, more legible or more readable
• We moved through different typesetting technologies up to modern word processing where you can make create whole documents that look any way you want with a few clicks of a mouse.

And still I get drafts every day written in double spaced, 12 point Times New Roman.

**Sigh**

I know what you're thinking. Fonts? Typography? What's the big deal? Move on Mr. Gray.

Before you roll your eyes and move to the next blog, take in this quote from the book:

The essence of the New Typography is Clarity. This puts it into opposition to the old typography whose aim was 'beauty' and whose clarity did not attain the high level we require today. The utmost clarity is necessary today because of the manifold claims for our attention made by the extraordinary amount of print, which demands the greatest economy of expression.

That's the big deal: clarity.

This quote was written by Jan Tschichold, the designer of Sabon, a clear and beautiful font.

But the most interesting thing?

It was written in 1928.

Do we have fewer "manifold demands on our attention" now, in 2011? Is clarity any less important?

Don't use accidental typography.

Be clear or be un-read.

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Just about the time you think there is nothing new under the sun or nothing interesting to blog about, the legal profession continues to astound and amaze.

More specifically, trial lawyers will never let you down.

On Monday I was trolling my usual blog buffet and I saw this item on the ABA Blog about a lawyer that was defending himself, pro se, in his own criminal trial. 

You know the old saying, a lawyer who represents himself has a fool for a client. But this guy took it to a whole new level. He was essentially appearing in court with the human equivalent of a canine shock collar:

Four U.S. marshals will be in the courtroom as attorney Paul Bergrin goes on trial in federal court in Newark, N.J., next month in a racketeering case in which he is accused of operating his law firm as a criminal enterprise and conspiring with another New Jersey lawyer to murder government witnesses.

But that's not not enough security, court officials apparently have decided. Bergrin, who is defending himself pro se, will also wear a hidden ankle bracelet. If he moves too far from his assigned area of the courtroom and violates rules against approaching the bench or the jury, he could get a jolting electric shock from the marshals, via the bracelet, . . . .

A jolting, electric shock for trial counsel who neglects to seek permission before approaching the bench?

Now this could come in handy. Really, really handy . . . .

Of course, my first thought was that the Supreme Court of Texas might find such a device useful for all of those trial lawyers who handle their own appeals when they are prone to wander from the podium in order to re-deliver their closing argument:

• But do you give the button to Chief Justice Jefferson? He might be too restrained, nice guy that he is.
• One button to each member of court? That could be dangerous, especially if all nine are fighting to get their questions answered. That gives new meaning to the words "hot bench."
• Maybe just give "the button" to Justice Hecht as the senior justice empowered to act on behalf of the court?

I'm probably just a bad and vindictive person, but I began to daydream about all the other habits of trial lawyers that such a device might plausibly correct. The list began to expand rapidly with everything from pet peeves that make my head explode to matters of real substance.

But before I publish my own list, I want to hear from you:

• What are the things that other lawyers do that drive you crazy or make it harder to successfully do your job in representing the client?
• What behaviors would you change if you could?
• And in particular, what do lawyers do, often without thinking, for which you might give them a zap?
• And what about you judges out there? Be anonymous if you need to, but what lawyer conduct do wish was Taze-worthy?

Use the comments. Weigh in. Speak out.

Or else.

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I've heard that admitting the problem is a good first step. So here goes.

My name is Kendall Gray, and I'm a serial killer.

Somewhere along the line, I killed the serial comma.

I became aware of the problem when Judge Brister staged an intervention. He sent back comments on a brief that we're writing, and one of his comments was:

Since when did you stop using the serial comma?

Oops. After the break, some blood, toil, tears, and sweat. And grammar, style, and writing advice. And commas.

I make my amends for serial killing.

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The ability to buy books online means that I am easily parted from my money. 

 It is a regular occurrence in the office that a package with a smiley face will arrive of an afternoon, and my purchases are so frequent and impulsive that I often cannot anticipate what is inside.

This past week I tweeted about the arrival of this little gem, "Just My Type: A Book About Fonts" by Simon Garfield.

It is about so much more than fonts, as I soon discovered when I spent the first half of the high school football game last Friday with my nose buried in its pages.

Yeah, I can only nominally be called a Texan given my lack of devotion to Friday Night Lights.

The book is an entertaining history of how we got from texts handwritten by scribes, to moveable type that endeavored to look like handwriting, to mechanical type that was designed for clear communication, to digital typefaces.

Included in the yarn was the tale of what might be the worst typo of all time: the "Wicked Bible." Because of a typesetter's error, congregants in the British reformation, who had only recently received scripture in their native tongue, were actually commanded to commit adultery:

We are not immune from such whoppers, just because we no longer set moveable type. A Google search for the worst typos ever yielded this post about other embarrassing moments in publishing history. Spell checker never would have caught most of them.

The recipe undoubtedly called for "ground black pepper," not "ground black people." Likewise, Garrison Keillor's opus does not include "Prairie Ho's"--unless he's gone gangsta without my noticing.

Stay tuned for an upcoming article on how to become a better editor of your own work. Thankfully, as much damage as a bad brief can do, we are unlikely to send a rocket crashing into the sea through misplacing a hyphen.

I'm just a humble appellate lawyer, and writing the King's English is not rocket science. Is it?

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I recently posted about an extreme example of what can happen when one fails to adequately edit and proof a brief--including failing to adequately edit for tone and indeed for arguments that ought not be made in an appeal that probably ought not have been taken.

So, if one accepts the proposition that careful editing and proofing are important, that leads to the obvious next question of, "how do you do it?"

Sure, I have my own bag of tricks for how to edit a brief, not only to ferret out the niggles and mistakes, but also to pump up the prose so that the things you ought to say are said in the best way possible.

(Notably, those are not always employed on the blog and mistakes slip through).

But I've very seldom gotten ideas from other folks on their own methods of editing.

So here's the question I'd really like the readers and lurkers to answer in the comments:

What are the steps you go through, the techniques you use or your personal "tricks of the trade" for getting from the full draft to the almost final draft to the filed product?

I'd like to get as many answers as possible for a potential article or series of posts.

Plus, I'd just like to get better at this sort of thing. I'm a GREAT editor of stuff written by someone else. Stuff by me? I could be much better.

And just think: if we can save just one brief from the odd dangling participle or lack of subject/verb agreement, school marms in black robes everywhere will surely lavish us with thanks.

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We in Texas take our cheer leading seriously--seriously enough for some to make a federal case out of it apparently.

For that is what happened in Sanches v. Carrollton-Farmers Branch I.S.D. where complaints over not making the squad escalated to a federal civil rights lawsuit under Title IX and 42 U.S.C. § 1983.  

Hat tip to the ABA Blog and Above The Law for noticing the case first.

If some lawyers might think twice about seeking federal remedies over such facts, a cautious lawyer might think thrice about whether and how to appeal to the Fifth Circuit. 

After the break, a word about how you can make a weak claim worse through bad grammar or by failing to take some time to sleep on it before you cast darts at the lower court.

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 I've written here before about the qualities of a great introductory paragraph, how important it is to state your conclusions up front, get to the point and tell the reader the answer, and how a good introduction keeps your reader from feeling like they've been kidnapped. 

Here at the end of the Supreme Court term, when I'm trying to shake off my sloth and catch up on all the opinions that have come out, I must again wag my pedantic and prodigious finger. The Court does not always measure up. 

With a good introduction, I can tell what the case is about, what the issue is, how the issue comes out. 

With an inadequate introduction, I either get a garbled message or I am forced to read further to find out . . . whether I want to read further.

After the break we'll use some recent Supreme Court opinions as object lessons for what works, and what doesn't.

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This is the post where you find out what Justice Scalia has in common with the Mayor of River City, Iowa and how a good amicus brief can buttress an opinion. Read on.

Con Law professors everywhere work themselves into a lather every June, because that is when the Supreme Court seems to always let fly with its blockbuster opinions.

This term was no different. In the dock for the final day of the term was Brown v. Entertainment Merchants Association.  Brown asked the question of whether California could prohibit the sale of certain video games to minors, specifically the really gnarly ones that middle school boys would call "wicked" or "awesome" or whatever the kids are saying these days. The law was aimed at:

'killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted' in a manner that '[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,' that is 'patently offensive toprevailing standards in the community as to what is suitable for minors,' and that 'causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.'

So can California do that? Or is that like trying to ban Lord of the Flies because Piggy gets whacked?

As it turns out, the Court said that violent video games and Lord of the Flies are constitutionally the same.

After the break a few words about how Justice Scalia did it--with a little help from his amici.

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A hearty thank you to the Dallas Bar Association Appellate Section for inviting Rob Gilbreath and me to wax on about Typography.

The food was great.

The company was even better.

The questions after the presentation were both welcome and interesting. Several stimulated good topics for a future post on the blog, so watch this space and stay tuned for more deep thoughts on not being ugly and unreadable.

As promised, you can find the powerpoint presentation, with its list of outside resources here.

I love discussing, thinking about, and speaking on this topic, so all your comments and thoughts are welcome. It was great putting the presentation together, and I hope I get to present it again really soon.

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A little heads up to readers in the Dallas area. The Appellate Record will be on the road, live and in person at the Dallas Bar Association Appellate Law Section on June 16. The seminar will be at the Belo Mansion at high noon.

Robert Gilbreath and I will be presenting a program called "Don't Be Ugly" about how to enhance the persuasive power of your legal writing just through better typography and document design.

• We'll be using actual briefing examples from a number of real cases.
• We'll stack the Microsoft defaults and the briefing rules up against standards of good typography.
• We'll mock Times New Roman.
• We'll joust about footnotes.

It will be nerd-o-riffic. So be there or be square.

Or, squarer.

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Thanks to Robert Dubose, who has been kind enough to share his tips on writing for that new, rewired animal, the screen reader. He ought to know.

He wrote the book on the subject.

We learned about using headings to communicate your argument.

We learned about giving readers that mental ease they need by chunking complex information together and providing regular breaks in the page.

Now, the last installment, which is less aesthetically oriented. Interestingly, it comes back to good compositional technique.

After the jump learn:

• what you need to leave out of your brief if you want to keep the reader on task; and
• how you might need to change the way you set out a paragraph for readers who are skimming the first sentences.

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I am now going to astound and amaze you with some of the best English language writing ever:

If we are mark'd to die, we are enow To do our country loss; and if to live, The fewer men, the greater share of honour. God's will! I pray thee, wish not one man more. By Jove, I am not covetous for gold,Nor care I who doth feed upon my cost; It yearns me not if men my garments wear;Such outward things dwell not in my desires. But if it be a sin to covet honour, I am the most offending soul alive. No, faith, my coz, wish not a man from England. God's peace! I would not lose so great an honour As one man more methinks would share from me For the best hope I have. O, do not wish one more! Rather proclaim it, Westmoreland, through my host, That he which hath no stomach to this fight, Let him depart; his passport shall be made, And crowns for convoy put into his purse; We would not die in that man's company That fears his fellowship to die with us.This day is call'd the feast of Crispian.He that outlives this day, and comes safe home Will stand a tip-toe when this day is nam'd, And rouse him at the name of Crispian.He that shall live this day, and see old age, Will yearly on the vigil feast his neighbours,And say 'To-morrow is Saint Crispian.'Then will he strip his sleeve and show his scars, And say 'These wounds I had on Crispian's day.' Old men forget; yet all shall be forgot, But he'll remember, with advantages, What feats he did that day. Then shall our names, Familiar in his mouth as household words- Harry the King, Bedford and Exeter, Warwick and Talbot, Salisbury and Gloucester- Be in their flowing cups freshly rememb'red.This story shall the good man teach his son; And Crispin Crispian shall ne'er go by, From this day to the ending of the world, But we in it shall be remembered- We few, we happy few, we band of brothers;For he to-day that sheds his blood with me Shall be my brother; be he ne'er so vile,This day shall gentle his condition; And gentlemen in England now-a-bed Shall think themselves accurs'd they were not here, And hold their manhoods cheap whiles any speaks That fought with us upon Saint Crispin's day.

Isn't that GREAT??!!! I especially love that "band of brothers" part in the middle.

What? Had a little trouble with it, did you? Just a few lines from a great speech and you mostly skipped over it, huh?

And yet how many times do we inflict a block quote or an unbroken page of our own prose (not as good as the St. Crispin's day speech) on some poor, hapless judge? 

In the first post on writing for screen readers, Robert Dubose, author of the book, Legal Writing for the Rewired Brain, gave us counsel about the importance of headings. Today, two more usability tools to give the courts a break, i.e., The pause that refreshes.

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Don't click this link.

(I told you not to. That song is lodged in my head like a blood clot now.)

And don't shuffle your itunes player.

And don't check your Netflix cue.

And don't think about the Facebook updates.

I'm trying to keep your attention here.

According to Matthew Butterick, my most valuable resource as a writer is reader attention. And the problem is you're a screen reader.

You've got lots of options other than reading this blog--as wondrously entertaining as it is.

And the judges reading your e-brief are increasingly screen readers too. They have a lot of options more engaging than reading your page upon page of unbroken text on the subtleties of the Noerr-Pennington Doctrine or the Dormant Commerce Clause.

Are these screen readers any different? If so, how do you engage them? How do you keep them? How do you write for them? As with typography, I went straight to the expert.

Because that's how we roll here at the Appellate Record.

My friend, Robert Dubose, has written a paper and spoken on the topic before. Now, he is the author of the book, Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World.

After the jump, we'll start to plumb the depths of his rewired brain.

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So last time we asked Matthew Butterick, author of Typography For Lawyers, about fonts for e-filing.

I mean, logically, if your judge might be screen reading, you should use one of those screen-optimized Microsoft fonts right?

Not exactly. Butterick thinks outside the box, and he knows his tech. He knows that a good font for paper reading is going to look awesome in a pdf, and he knows why.

Rasterizers. It's all about the rasterizers.

More to the point, that screen font is going to look lousy if Judge Paper McFuddy Duddy prints your beautiful e-brief onto dead tree fiber.

But guess what? There's more. After the break we take the Butterick post-graduate seminar in PC, Mac, and rasterizationing.

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Oh. Em. Gee. E-filing has finally come to the Texas courts of appeal!

I had heard a rumor and a report that it was here, but then it went away and now it's back again.

It must be true because it says so Don Cruse's Supreme Court of Texas Blog and Todd Smith's Texas Appellate Law Blog.

But this led me to ask myself a question. "Self," I said, "suppose all this e-filing means that courts of appeal will turn into giant computer banks, and all the judges and law clerks rely more on screen reading than on humble and old-fashioned paper? Then what?"

And my self said, "So what. Get a life."

But I persisted. "Should I be using a different type of font for these screen readers than I use for judges who like paper? I mean, I know that fonts like Georgia have been optimized for screen reading. Should I use those?"

And my self answered, "How should I know? I'm not the typography guru. That would be Matthew Butterick, author of Typography for Lawyers, winner of the award for Awesomest Legal Book Ever. Ask him."

So that's just exactly what I did. After the break is part one of the official Butterick take on fonts for screen reading--and the answer will surprise you. It's something about smart rasterizers.

I didn't even know I had a rasterizer, let alone that it had an IQ.

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There's one part of every legal project that always stresses me out.

You'd think that I'd be used to it or would get over it or at least that I would come to expect it. But somehow it always seems to catch me by surprise. And every time seems like the first time.

It's not the working part or the writing part. That part is fine because I feel like I'm "doing" something--making a little progress toward the goal.

What's the part the always freaks me out?

It's the thinking part.

After the break, a homily from Justice Scalia and Bryan Garner about thinking twice and writing once.

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The spirit of protest is abroad in the land!

Tyranny quakes in the face of the Jasmine Revolution, the Facebook Revolution, and the Scrabble Revolution!

What? Am I the only one who's familiar with the Scrabble Revolution? Am I a revolution of one?

Am I the only word nerd prepared to cast my Scrabble tiles into Boston Harbor in protest of the tax on letters?

OK, I'll concede that my Scrabble Revolution pales in significance to the real revolutions around us. But the letter tax still makes my head explode. And this is my blog, so in this little corner of the universe, it's all about me.

After the break, find out why I am convinced that there must be a tax on letters to make the courts write the way that they do.

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Well, it's been a quiet week in the SCOTX and the Fifth Circuit, my home courts. Not a whole lot of opinions of note coming out this time of year.

Nevertheless, I was flipping through the recent offering from the Fifth Circuit, and my head kind of exploded.

Or it would have if the document had been written by a practitioner instead of an Article III Judge.

Article III judges have reached a station in life that they can force me to turn the pages if they like. Practitioners? Not so much.

After the break, a harmless rant on why you're not Agatha Christie and should not try to write like her. 

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Short words are best and the old words when short are best of all.

--Winston Churchill

At the suggestion of a reader, I recently got 100 Ways To Improve Your Writing by Gary Provost. It was not written for lawyers, which makes it the perfect tool for improving your legal writing.

Building on the two, recent posts about my exploding cranium (here and here), the more legal something is, the less readable it becomes. So the goal of every legal writer ought to be to write like a writer--or maybe like a reader--not like a lawyer.

Provost's book is filled with useful rules and reminders to assist in that effort. For example, the first rule in the sixth chapter, "Twelve Ways to Give Your Words Power" is  "Use Short Words."

Short words tend to be more powerful and less pretentious than longer words. Rape is a powerful term; sexual assault isn't. Stop is stronger than discontinue.

The quotation at the top of the post shows that this idea was not unique to Provost. Sir Winston would have agreed. And if he picked up one of your briefs:

• "Prior to" would become "before."
• "Subsequent to" would become "after"
• Phrases like "pursuant to" and "in conformity therewith" and "heretofore" and "wherefore" and "inter alia" are banished to the dust bin of all legalistic flotsam.

All Latin-derived mush should be replaced by reliably stolid, Anglo-Saxon words with heft and power.

As someone who towers at 5 foot 5, I am delighted to hear that short means power.

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I am sure you noticed it, did you not? Judge Posner recently had the good sense to agree with us here at the Appellate Record.

You mean you didn't see it? Judge Posner just wrote an article (pdf) in which he opined (in substance) that the Bluebook and its authors are full of beans.

He may have put it a bit differently, but we at the Appellate Record have long thought so. After the break, a homily on when it is best to use improper form, and what this has to do with my head exploding.

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 A foolish consistency is the hobgoblin of little minds, adored by statesmen and philosophers and divines.

--Ralph Waldo Emerson

Five (5) days ago, or maybe it was six (6), I got one (1) e-mail from a blog reader and appellate-lawyer-colleague. His head had exploded, and I don’t blame him. Mine would have too.

On the whole, we appellate lawyers are quite used to collaborating with others. We can brief with a committee of twelve (12). We can harmonize three (3) sets of edits. We know that there’s more than one (1) way to skin a cat.

But then, there are four (4) or five (5) things that make one’s (1’s) head explode. After the break, I’ll disclose one (1) of the things that makes my head explode and try to draw a broader lesson that may be of use.

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In previous posts (e.g., like this), I have kvetched about court rules that require us to file ugly briefs. Now I'll kvetch about court rules that require us to destroy the planet along with Western Civilization as we know it.

I know, I've told you a million times never to exaggerate, but hear me out. After the break, find out why we need to change court briefing rules, not only to save ourselves from ugly briefs, but also to forestall our descent into a Cormack-McCarthy-like post-apocalyptic nether world.

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So, the nerdgasm continues. "The Goldilocks Brief" could be the name for a best-selling thriller that would make me quite wealthy.

But it’s not.

It’s just the name I have given to one of my brief templates that is not too hot, and not too cold, but (maybe) just right.

In the wake of my Extreme Makeover and Matthew Butterick’s Extreme Makeover of the Supreme Court’s opinion in Comptroller v. Attorney General (pdf), we received several comments along the lines of:

Wow, that’s extreme.

Several even questioned whether there was a happy medium short of going to full on SCOTUS typography with wide margins, 11 point font etc.

There is, and it’s the Goldilocks Brief. After the jump, the Goldilocks Brief is explained.

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And now we come to part three in the exercise. 

I originally wondered whether one could improve upon a good judicial opinion just by changing the typography.

Then I took a swing at it, making some fairly radical changes in the original Comptroller v. Attorney General written by Chief Justice Jefferson.  This was the result

Now we get an idea what kind of changes someone who knows what they're doing would make.

Matthew Butterick, unlike me, has an undergraduate degree and work experience in the area of font design. Part of what set me off on this experiment was reading his new book, Typography for Lawyers, which is both useful and entertaining. It has reference-type sections that set out the rules and conventions of good typography, as well as historical and entertaining yarns about how we got where we are and why there is almost no escaping Times New Roman font. 

In my view, every lawyer who writes enough to own the Bluebook needs a copy of this book too.  (All the cool kids have one).

So when I decided I would try my hand at redesigning an opinion, I e-mailed Butterick to see if he would have a go.  He consented.  After the jump, you get Comptroller v. Attorney General both before and after Butterick.

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When last we met, I threw out the question of how you might make a well-written opinion even more readable by changing only the typography.  You had some great comments, many of which I had already been incorporating and several of which made me think even further.

Some of the guiding principles were that double spaced 12 point newspaper fonts are not as readable as smaller book fonts on shorter lines and line spacing in proportion to the font size. 

Banish the fixation pauses!

But maybe more to the point, we don't create documents on typewriters any more.  There is no need to restrict ourselves to documents that look like undergraduate term papers.

But now it is time for the first big reveal.

After the jump, we’ll see if an amateur trouble maker can make Chuck Norris--I mean Chief Justice Jefferson--more readable by changing only the court's typographic choices.

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You don't tug on Superman's cape
You don't spit into the wind
You don't pull the mask off the old Lone Ranger
And you don't mess around with Jim

(Jim Croce)

Some of you readers will recall that we have had occasion to compare Texas' Chief Justice Jefferson to Chuck Norris.  Just like one ought not tug on Superman's cape, a wise man would not tweak Chuck Norris' beard. 

But no one has ever accused the Appellate Record of being wise.  So we decided to take one of Chief Justice Jefferson's recent opinions and put it through an extreme typographical makeover.  After the jump, you'll find out why.

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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.

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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.

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Okay, so now we're going to get down to meddling.

The Appellate Record is going to lay down the law on the use of footnotes when citing authorities.

I've heard judges complain about all the cases being in the footnotes.  And I've known judges and legal writing wonks who insist on putting all the cases in the footnotes. 

But I am convinced that they're all wrong.  Both sides.  Partially right and completely wrong.

I am convinced that there is only one way to do this, and that is the way that I do it--

--at least it is the way I do it right now, which has changed--

--and which may change again if I become convinced that there is a better way. 

Why so much confusion?  Because there are a lot of reasons that you might cite a legal authority and it can happen in a lot of different contexts.  Both the reason for the citation and its context might influence whether using a footnote is a good idea.

After the jump, more of the fight against footnote fundamentalism. 

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So, this should be fun.  If there is anything that will kick the hornet's nest more than "my font is better than your font," it is the footnote wars.

I am sure that I'm exaggerating, but it seems that the proponents and opponents of footnotes have been jockeying over their lines in the sand to no great effect.  One fears that the improper use of the footnote will be the death of your substantive argument if your audience becomes doctrinally offended by your lack of footnote purity.

But never fear, gentle reader.  The Appellate Record is here to help.  For there is one right way to use or not use a footnote, and as luck would have it, that way is my way. 

(And here at the Appellate Record, it is either my way or the highway).

After the jump I will cast my hand grenade in the footnote wars.

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So, we're still trying to make a user-friendly document by chunking information through the use of contrast and repetition along with proximity. 

But one way to strip your document of any comprehensible repetition is by getting things out of alignment.  Put some stuff on the left, some on the right, some wacky captions and maybe a diagonal text.

That's not a brief--it's a word search puzzle.

While there is some difference of opinion on the ideal alignment, the debate exists only on the edges--literally.  After the jump, the Appellate Record will try to "justify" its position concerning justified text, as well as rocking your world on block quotes.

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I know what you're thinking.  Your humble blogger has Fall Classic on the brain.

Perhaps so, but there's also a point here.  Remember the old Chevy commercial about "Baseball, hot dogs, apple pie and Chevrolet?"

Well that was a use of CRAP--or really the last letter in our CRAP acronym: Proximity.

Chevy was saying, "we're as American as baseball, hot dogs and mom's apple pie."

And if you don't buy a Chevy, you're not a real 'Uh-Mer-can.  In fact, you may be a commie.

Chevy was making it's product patriotic by placing it in proximity to other American icons. (And by using a jingle that can stick in your head like a blood clot for 35 years.  No need to thank me, I'm just here to help.)

After the jump, a homily on what this has to do with legal writing.

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Have you ever watched a really fantastic pianist closely--like watching Evgeny Kissin's fingers flying over the keys. 

Seriously, watch the Youtube link because there's a point to this.

How do they do this? 

Obviously innate talent combined with thousands of repetitions over years of practice. 

But you know one thing that would foil even Evgeny Kissin and make his finger's stumble?  Taking all the CRAP out of the key board.

After the jump, I'll finally define CRAP and talk about what CRAP has to do with legal writing.

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Even before we were old enough to join in the world's most persistent debate--i.e., "tastes great" v. "less filling"--everyone I knew at Tremont Elementary School debated something of even greater import:

Chunky v. Smooth

There is obviously only one right answer for any given kid, because an adherent to chunky peanut butter would never be satisfied with smooth and vice versa.  And so the debate continues.

But when it comes to legal writing, especially in its longer forms, there can be no legitimate debate.  Chunks are good. 

After the jump a humble missive on why you dare not be smooth if you want the court to learn, understand, and care about the issues in your case.

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And now the answer to the question you've all been waiting for: 

What is the perfect font?

Alas, gentle reader.  You might as well ask me what is the perfect wine?  The answer is, "It depends."

• What are you eating?
• What type of wine do you like?
• Dry or fruity?
• Red or white?
• Does this taste good to you?

As with wines, the perfect font depends on what you are writing? 

• Posters? 
• Street signs?
• A brief?
• A letter?
• Are there font size requirements?
• Does the court make you double space?

After all, every good law student learns that the answer to most Socratic questions is, "It depends."  So it is with fonts or wines.

Nevertheless, after the jump, I'll reveal, at long last, the official font recommendations of The Appellate Record.

Feel the magic.

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Professor Peter Friedman from Case Western Reserve University Law School, while liking my last Nerdlaw post, thought it a bit of a "cliffhanger." 

After saying what font not to use, I did not go on to say what font should be used. 

Who knew that fonts could be so thrilling?

Don't worry, The Appellate Record's official font recommendations are coming.  But in the mean time, think of this as the Dickensian novel in serialized form. 

Besides, Times New Roman is just too awful to resist another post on the Font That Dare Not Speak Its Name.

And prepare yourself, gentle reader. I am about to turn you on to nerdiana about fonts and typography of the highest order.

Meet Matthew Butterick, lawyer and Font Jedi -- a bona fide Harvard educated graphic designer.  His website, Typography for Lawyers (where you can preorder a copy of his upcoming book by the same name) is my new document design happy place.

**Hat tip to Jason Wilson, the publisher, who commented on the first Nerdlaws post for pointing me to the resource. 

In addition to providing an expert's recommendation on fonts and a link to the Seventh Circuit's recommendation on typography, Butterick provides the history of Times New Roman and how it became so ubiquitous.

Times has been with us since 1932, when the Times of London (the newspaper) hired font designer Stanley Morison to create a new text font, which was based on historical Dutch designs. Because the font was being used in a prominent daily paper, it quickly became very popular when it was released for general commercial use the following year.

* * * 

As font technology has evolved—from lead type, to photo typesetting, to digital—Times has been one of the first fonts available in each new format, for the sake of backward compatibility. But this first-mover advantage in each format has only solidified Times’s hegemony as the ultimate default font.

Though much more qualified than I am, Butterick agrees, "If you have a choice about whether to use Times, please stop."

Given its position as the ultimate default font, the appearance of Times in a book, document, or advertisement connotes a certain apathy—it says “I submitted to the font of least resistance.” Times is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times is to gaze into the void.

But don't despair.  The spine tingling font suspense will not (can not) go on much longer.  Next in the Nerdlaws series: Thou shalt use the right font.  Then you can feel the magic for yourself.

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(An homage to the Radio Shack commercials with Lance Armstrong and his clueless assistant, Alphonse)

Me:  (on my bike trainer in my office, of course) ALPHONSE!

Alphonse: Yes, Kendall.

Me: Why do people write using Microsoft Word's default settings?

Alphonse: They don't think--

Me: --That's RIGHT.  They DON'T  think.  These are the guys who brought us Microsoft Vista and the Blue Screen of Death.  Why would you ever let them decide how your brief looks?

Me: (continued) Computers can do all kinds of fonts and desktop publishing functions.  We don't  use the IBM Selectric any more. 

More Me: From now on, we're all going to stop acting like cattle.  Instead of going with the herd, we're all going to think for ourselves and make informed and aesthetic choices about what our documents ought to look like.

After the jump, more on default settings, Bill Gates, Judge Easterbrook, and the font that dare not speak its name.

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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.

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We almost take it as a given that lawyers can’t write. (Just don’t tell Scott Turow or John Grisham.)

Why is that so? Why can’t lawyers write? At least in part, I think it is because we read so much bad writing when we are learning to be lawyers. Think of all the turgid prose and passive voice and inscrutable jargon in all those cases you had to read in law school. With that as a model, little wonder that baby lawyers thrive on writing the unreadable.

And judges are still giving us the kind of writing they tell us that they don’t like. After the break, an example taken from the recent Civil Appellate Practice Conference and the paper authored by Chad Baruch.

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It might surprise you, but I am a largely self-taught writer.

Then again, maybe it shows. 

The last time I had any formal training in English composition, Ronald Reagan was President.  The year was 1984.  A stamp was 20 cents. The Cosby Show debuted on NBC.  And we were all worried about ballooning federal spending: $851.85 billion.

Less than a trillion?  How cute!  You itty bitty widdle federal budget!

I've lived with a persistent fear and terror since 1984--fear of tiny little words and commas.  But after the jump, learn how Professor Wayne Schiess liberated me from my linguistic straight jacket.

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In my last post, I summarized the Fifth Circuit's new MGE UPS Systems opinion.  The substance is sound and important to civil lawyers, but I've got a bone to pick with the author.

This legal writing rant could be brought to you by Radio Shack and its series of Tour de France Alphonse commercials with Lance Armstrong.  The one I have in mind is, "LOL," where Lance sets out the rules of engagement:

First things first: No man over the age of 30 will EVER use emoticons. 

And poor Alphonse replies, "LOL, Lance," to which Lance gives his steely glare: 

Whoa.  LOL??!!!  Don't make me get off this bike.

Not that I am the Lance Armstrong of anything, but I propose a new rule:

No one with a law degree will EVER make up his or her own acronyms.

I've heard judges complain about briefing in which every corporation and affiliate bears its own inscrutable acronymic reference.  And the complaints are well taken.  You shouldn't need a score card or an answer key to tell who did what to whom. If one has to either memorize new abbreviations or flip back and forth to the definitions, the odds of engaging that reader are markedly diminished.

But the same can be said for opinions that are an alphabet soup of abbreviations.  Why not give parties and statutes names that make intuitive sense? (And secondarily, why can't companies have names instead of alphanumeric hieroglyphic identifiers??)  In the first pages of MGE, for example, we are treated to:

• MGE
• GE
• GE/PMI
• DMCA

And this opinion is not even a big offender.  But all one really needs is MGE and Power Management.  Because of all the extras, I can tell you that I was not LOL-ing or ROTFLMAO-ing or even LQTM-ing while I was trying to learn the technology involved in the dispute.  Several times, I was all, like, "BRB--I have to turn back to the first page to figure out what's going on here."

Simply stated, neither briefs nor opinions ought to read like Bankruptcy Plans or Offering Memoranda.  (Bankruptcy Plans and Offering Memoranda likely ought not be the way they are either, but that's a post for another day.)

Now, I'm not condemning acronyms that everybody knows already, e.g., IRS, NASA, USA, AT&T or ERISA.  Those kinds of acronyms aid comprehension because they already contain meaning.  Because they aid in precision and understanding they are good. 

But excessive use of made up acronyms rather than just calling the parties "Power Maintenance" or "Plaintiff" violates Kendall's Prime Directive Of Legal Writing:

No matter what Bryan Garner and the Bluebook say, anything that interferes with understanding is bad.

So, please.  The life you save may be your own:

No one with a law degree will EVER make up their own acronyms.

Don't make me get off this bike.

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Regular readers will remember the recent post where I kvetched about the tendency of SCOTUS judges to write "page turners"--and not in a good way.  Those are opinions in which you can't tell what is going on for lack of a good introductory paragraph to help you organize the information.  Instead you must wade through recitations of legal history, factual history, procedural history, and sometimes history history, all while wondering:

Is this going to be on the test?

If that post was a wag of my blogging finger, consider this a tip of my bloggorial chapeau.  For in addition to being the Chuck Norris of the legal world, the Chief Justice of the Supreme Court of Texas shows his federal brethren how it is supposed to be done.

Consider the introductory paragraph from Grant Thornton v. Prospect High Income Fund.  It gives you enough information to fully understand what the issue is, why it is important, who wins and why:

Certified accountants audit companies for many purposes, not least of which is to provide corporate directors with an objective assessment of their companies’ performance. Audits are also prepared to give information to a specific investor who the auditor knows will rely on its contents. We must decide whether the law imposes an obligation on the auditor to provide an accurate accounting not to the corporation or known investor, but to anyone who reads and relies on it. We conclude that it does not. Likewise, we hold that the particular investors involved in this case could not have justifiably relied on the audit reports as to purchases made after they knew the corporation was at risk of financial ruin, and they may not substitute their escrow agent’s reliance for their own without also being bound by its knowledge. Finally, we reject the investors’ “holder” claims—claims not that they bought or sold securities based on the auditor’s reports, but that they held them when they otherwise would not have—in the absence of a direct communication with the auditors. For these reasons, we reverse in part the court of appeals’ judgment and render judgment that the investors take nothing.

All of this comes in the first paragraph. And because it does, any other page in the opinion makes sense.  The opinion hangs together whether it is read straight through (which, let's face it, hardly ever happens) or in single issue snatches while writing your own brief.  And because you know how the story ends, you never have to guess about which facts or procedural events are important. 

It's not much of a way to write a mystery or a thriller, but it's the perfect way to write your brief if you want it to be read and understood. 

Or you could go for mystery.

So here's to you, Mr. Good Summary Introductory Paragraph Guy.  We doff our collective hat.

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Monday's Supreme Court opinions, ably reported by Erin Miller at SCOTUSBLOG, were . . . how does one say it . . . underwhelming. 

There I sat with my vuvuzela and SCOTUS face paint waiting on Bilski and waiting to see if the Fourteenth Amendment protects me from having the City of Chicago pry my guns from my cold dead fingers, and what do I get?

• The Carmack Amendment,
• The FAA,
• Seed deregulation, and
• It's wrong to support terrorism, even in the Ninth Circuit. 

Who knew?  Like you, I was gobsmacked.

But separate from the legal issues involved, I noticed something about the legal writing that pushed my buttons--indeed a HUGE pet peeve with me.  So consider yourself warned, SCOTUS.  Consider this post a wag of my prodigious, blogger finger.

After the jump, your humble blogger will demonstrate why Supreme Court Opinions are no place for prospective suspense writers.  Just tell us, "whodunit."

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An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits. 

In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.. . . However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.

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There's a special form of legal terrorism going on out there.  Judges everywhere are being abducted and taken on horrific journeys that they never knew they were in for. 

Well, only kind of. 

What I'm talking about is the tendency of advocates not to tell the judge where they want to go and how they're going to get there.  The result of such a failure is that the decision maker you are trying to persuade feels like he or she has been dumped in the trunk of your car in the dead of night.  Instead of persuasion, the reader feels disorientation or worse. 

After the jump, read an illustration of the problem and some approaches for how to take your reader along for the ride while not making them feel like they've been abducted.

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If the present state of legal writing were any indication, Law Schools apparently teach their students that the ideal written argument should have all the attributes of a shell game on the carnival boardwalk, or maybe a game of "Three Card Monty."

Move things around, bamboozle the judge with your legal jargon and passive voice, and disguise your main point by burying your strongest cases to the back of the brief, preferably in a footnote.

Do you think I'm being to harsh?  Ask the judges.  I bet they'll agree with me.

Rather than "Three Card Monty," a former colleague of mine, who is now a judge, advocated a different paradigm:

You should write as if the judge is reading your motion at three o'clock in the morning . . . while drunk.

Now, there's a picture.  Her words.  The Judge's words.  Not mine.

After the jump, a good lesson in avoiding the "Three Card Monty" motion and writing for the Three A.M. Judge.

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Imagine the reception you would get at oral argument if you answered a question from the court by stating, “Well, your honor, two hundred and twenty years ago, in 1789, the Congress passed the First Judiciary Act, a completely different statute that has since been repealed, but that’s where I’d like to begin in answering the Court’s question.” 

If there is such a thing as the judicial “Nuclear Option,” one might expect it to be used. Judges still young enough to vault over the bench might consider it.  Others not quite so spry would press the panic button and call the marshals. But if you were in the Supreme Court of the United States, you’d be well within your rights to complain, “Hey, wait a minute. You started it!” 

After the jump, find out if it really is the Court’s fault, and in a fit of WASPish chutzpah, I will edit the court’s recent opinion in Hertz Corp. v. Friend (pdf) in an effort to improve upon it.

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