by Suzanne Suarez Hurley
When a lawyer writes and uses a PC, he or she is not only using text to speak to a judge or an audience, but is also demonstrating a certain level of professionalism by the way the document is created. Presentation is extremely important and sends important messages to the reader. Now that we as lawyers are deeply entrenched in the use of computers and electronics, it is time to recognize our responsibility as professionals to increase the quality of documents utilizing typography.
A word of caution: I am not suggesting that counsel should not observe court standards and rules for documents. Some, but not all, of the suggestions in this article can be adopted within court rules. Others cannot.
Though my law school experience a couple of decades ago did not offer classes or training in typography, my nine years prior experience as a professional typesetter made life easier. Law school in the early ’90s stressed good legal writing and resisting bad habits that had been passed down in law firms, such as using antiquated, old-school language. But there was no discussion of how to make documents actually look good.1 Frustration set in as I entered the world of law that was way behind the curve in this regard.
Like most attorneys, I followed the crowd and, of course, the court rules when it came to typesetting standards. But, in 2010, and even earlier, in 2004, unbeknownst to me, other legal professionals began to encourage attorneys and judges to “wake up to trends.”2 Visual presentation, “looking good on paper — literally,” is finally being recognized in the legal world as important to persuasive writing. Text alone creates a picture when we utilize typography “like paint on the canvas of the page,” says Ruth Anne Robbins, a clinical associate professor at Rutgers School of Law in Camden, New Jersey, who has written for the Journal of the Association of Legal Writing Directors. Attorneys need to catch up with other professional disciplines that are years ahead of us.3
Textual effects can give a document emotional appeal. Scientific research has shown that, if the argument is presented in a visually effective manner, the reader is more likely to understand and to retain the material. For that reason alone, principles of document design should not be considered “optional.”4
In 2010, attorney Matthew Butterick published Typography for Lawyers, Essential Tools for Polished and Persuasive Documents.5 He explains that good typography is a part of good lawyering.6 Butterick, who graduated magna cum laude with a visual arts degree from Harvard and, later, from the UCLA College of Law, suggests that we break away from outdated habits of the typewriter era. Our modern law offices have most of the same document-production capabilities as professional print shops.
Unfortunately, says Butterick, what many lawyers consider proper legal typography “is an accumulation of bad habits and urban legends,” that should be set aside in favor of professional typographic habits.7 We write for the benefit of the reader, he says. Good typography captures reader attention and helps engage and persuade.8 Legal writers who treat reader attention as an unlimited resource are choosing to adopt a riskier model and will likely have a less favorable outcome.
Judges and others read our work as part of their job. They have a lot of writing that needs their attention.9 With this in mind, and if you believe reader attention is a valuable resource, then tools to help you conserve that resource are likewise valuable. Typography is one of those tools.
Good typography matters in a written document, just like good speaking skills matter during an oral argument.10 It makes the substance in the text more effective.11 As lawyers, we are susceptible to what Butterick calls “boilerplate syndrome”: the superstitious refusal to deviate from the form or substance of a document that was successfully used by another lawyer 30 or 40 years ago. “It’s not surprising that these bad habits get passed down. What’s surprising is how tenacious they can be.”12
Critics will argue against changing the current conventional text design of legal documents, but there is a growing awareness among lawyers of the need for visual persuasion.13 We have seen this in the explosion of visual techniques utilizing computers during jury trials. And though less focus has been placed to date on visual effectiveness in the text of our documents, there is a notable exception: The Seventh Circuit Court of Appeals now encourages proper typography and provides litigants with typography advice at its website.14
The Seventh Circuit’s typography advice indicates that things are changing. Our retrogressive stance is being chipped away as lawyers recognize that professional typography is a benchmark for quality. It is unnecessary to follow all typographic rules. Even little changes can make a big difference. We are all capable of mastering the essentials of good typography.15 When we temper Butterick’s advice with science, the move toward better typography becomes even more palatable.16
If a document is more “readable,” it is more likely that the reader will remember the content.17 In studying adult reading, psychological researchers have found that to understand a word’s meaning, the reader must identify and recognize the word simultaneously.18 This finding gives legibility increased importance.
Legibility is related to the typographical features in a document and affects the efficiency of reading perception. Studies show that legibility is measured by the ease of reading and is even more important than the macro features or organization of a document.19 Factors that affect the speed of reading include the type and size of the font, the width of the line, and the ratio of ink to white space on the page.20
Lawyers are part of the largest, most important publishing industry in the United States.21 That is another reason that typography in legal documents should be measured by the same standards as any professionally published material, like books, newspapers, and magazines. And though we may think otherwise, there is no such thing as “legal typography”; there is only typography.
If Butterick’s work and the work of the Association of Legal Writing Directors (ALWD) are given sufficient authority, the courts, including our own Division of Administrative Hearings (DOAH), and we lawyers have some improvements to make. For fun and to put this into perspective, this article will list and explain what Butterick calls the “basic typographic skills” and compare the standards at DOAH with the typographic standards recommended by ALWD and Butterick.
Basic Typographic Rules
• One space between sentences. Always one, never two.22 — Most people were taught to put two spaces between sentences but, these days, using two spaces is an obsolete habit. The practice was passed down from the typewriter era. Typewriter fonts had limited functionality when it came to letter spacing. Each letter or number had the same horizontal proportion. Using two spaces helped set sentences off better.
Since we don’t use typewriters anymore, they should not set our current standards. Our PCs allow us to utilize professional typographic standards. The only time two spaces should be placed after a sentence is when you are using a typewriter-style or monospaced font.23 With proportional fonts, two spaces between sentences create unattractive extra gaps and cause the reader to experience a fixation pause between sentences.24
• Underlining: Absolutely not. — In a printed document, don’t ever underline. Underlining skews the visual pattern of letters and slows down reading speed.25 It is another holdover from the typewriter age and makes text harder to read. There were no bold or italic characters with typewriters. The only way to emphasize text with typewriters was to back up the carriage and type underscores beneath the text. If you believe that something needs to be underlined, try using bold or italic instead. You can also, in certain situations, consider using all caps, small caps, or a change in point size.26
• Monospaced fonts: Don’t use these either. — Monospaced fonts were invented to meet the mechanical requirements of typewriters. Compared to proportional fonts, monospaced fonts are harder to read. And because they take up more horizontal space, you’ll always get fewer words per page. There are no good reasons to use monospaced fonts.27 Courier and Courier New are monospaced fonts. American Typewriter is another. These monospaced fonts cause a reading delay of almost five percent. That equals a significant delay of almost 15 words per minute.28
• System fonts (those already installed on your computer): Choose wisely. — Professional fonts are not a substitute for the basic fundamentals of type composition and text formatting. But they are an easy, cost-effective typographic upgrade for your documents.29 Butterick recommends what he calls “A-list” fonts as the best for readability. These include Baskerville, Bell MT, Book Antiqua, Calisto MT, Century Schoolbook, Garamond, Goudy Old Style, Helvetica, and Palatino.
His “B-list” fonts include Bodoni, Calibri, Century, Futura, and Perpetua. He places Times New Roman30 on his “C-list” with Courier, Courier New, Baskerville Old Face, Century Gothic, Cooper Black, and Copperplate. All styles of Arial are “fatal to your credibility,” he says, as are Bookman Old Style, Bauhaus, Colonna MT, Freestyle Script, and “goofy fonts,” such as Stencil.31
• Avoid all caps — All caps are very difficult to read, so they are best used sparingly. To make caps easier to read, add letter-spacing and turn “kerning” on.32
Butterick says readers tend to skim over paragraphs in all caps, making its use self-defeating. Also, the use of all caps dramatically decreases reading speed. Why make more work for a busy reader?33 Instead, use borders to emphasis a paragraph. Add a heading that stands out. Run it in a larger size. Use boldface. But don’t capitalize it.34
Robbins recommends that we retire the use of all caps in our documents while Butterick would not reject the use of all caps like he would the use of underlining. “They [capital letters] are original alphabetic characters and part of the oldest traditions of our written language,” he says. “Underlining is not.”
• Bold or Italic: Use one or the other sparingly — Bold and italic are tools for emphasis that are fine for short text but not for long stretches.
Serif fonts are those with little feet protruding from the ends. If you are using a serif font, use italic for gentle emphasis and bold for heavier emphasis. If you are using a sans-serif font, skip the italic and use bold for emphasis. Most sans-serif fonts have a gentle slant and do not stand out much on the page.
Because serif fonts are easier to read, they are recommended for large blocks of text. Sans-serif fonts are easier to read on computers, but are also recommended as a means of creating a visual contrast at headings in documents where the substance or body of the document is set in a serif font.35
Italics retard reading speed, but are not considered as bad as the use of all caps. It is recommended that italics be used sparingly. Attorneys would do well to avoid italicizing a whole passage.36
Fonts in bold, do not slow reading speed and are recommended as the cueing device of choice for emphasis.37
• Point size — For body text in printed documents the optimal point size is between 10 and 12 point.
Courts often require text to be set in point size 12 or larger, but that is not the most comfortable size for reading. Robbins agrees with Butterick on this point and sites scientific research indicating that 11 point is the easiest to read. Twelve point slows down the reader by five percent and 14 point by six percent. Experts in the field, she says, recommend reserving 14 point for headings only.38
Butterick notes that, when compared with the average book, newspaper, or magazine, the text in court filings is larger. Bigger point sizes require more paper, which is not friendly to the environment or to the office budget. Butterick demonstrates what he means in Figure 1.39
Butterick also provides a demonstration in Figure 2 to explain how different fonts set at the same size often will not appear the same on the page (here embellished by the addition of a couple more fonts):
• Centered text — See Figure 3 below.40
The “hard line break” moves the next word to the beginning of a new line without starting a new paragraph.41
• Justified text: “There isn’t much justification for justified text.”42 — Most professional typographers favor leaving the text left aligned rather than fully justified, where the text is lined up at both the left and right sides. When text is justified, it creates odd spacing that makes the document more difficult to read.
Documents that are left-justified only have a ragged right margin, which adds variety and interest to the page without interfering with legibility.43 Butterick says that he never fully justifies text because it makes the text look coarse, dry, and uninviting. Left-aligning, he says, is more reliable and relaxes the page.44
• First Indents and Space Between Paragraphs — Using both first-line indents and space between paragraphs is a mistake. If you indent the first line of a paragraph, don’t use space between the paragraphs too. Indentation should be minimized. Robbins suggests that attorneys consider eliminating indentation to cue the beginning of each paragraph.45
Indented whole paragraphs, single-spaced are nice in long legal documents to set off statutes and rules where they are being quoted. This provides a pleasing contrast to the attorney’s opinions and/or arguments.
• Balance the White Space — Effective use of white space (the margins and the amount of text on a page) affects legibility. Most graphic designers understand and use the “50 percent rule,” where little more than 50 percent of the page appears in print. This rule is followed by most professional publishers and is considered important for legibility as well as aesthetics.46
All in all, a lawyer who is able to effectively manipulate textual design will create a more credible and persuasive document.
The Division of Administrative Hearings Standards Compared
The Division of Administrative Hearings, our Florida administrative tribunal, uses 14-point Courier New as its basic standard. Courier New 14 has been DOAH’s standard for 16 years. A comparison of DOAH’s standard with Butterick and Robbins’ recommendations suggests that the judges could accomplish more in a shorter period of time — and have an easier time reading — just by adopting a proportional serif font in a smaller font size, perhaps 12 point instead of 14.
Because the standard font used by DOAH is Courier New, a monospaced font, DOAH is correct to put two spaces after periods. Should DOAH’s standard change to a proportional font such as Times New Roman or any of the recommended serif fonts, single spacing after sentences would be the professional choice.
DOAH does not use italics but underlines case names and titles. The scientific research referred to above would require DOAH to reverse this standard and use italics instead of underlining to improve readability of its orders and other documents. “We have held on to old patterns that were established a long time ago when we first got computers,” said one of the administrative law judges.
Justification, where the type creates even vertical borders on both sides of the page, is never used by DOAH or the administrative law judges. The DOAH clerk happily reports that a majority of the documents filed by the lawyers are also not justified. DOAH’s decision not to justify documents is consistent with current typographic standards.
DOAH uses double-spacing for the most part and prefers that the lawyers use double-spacing, too, in the body of submitted documents. Indenting whole blocks of type and single spacing when quoting statutes or rules are acceptable. These methods are also used by the administrative law judges as they tend to set off the law and rules visually from the analysis or conclusion of the writer.
Though DOAH’s administrative law judges do not use boldface type, attorneys are welcome to use it to set off the caption from the body of the document or to use it at headings. Uniformity, said the clerk, is of ultimate importance. Therefore, if bold is used, sparing use would be best. The caption, title, and headings, for example, might be in bold but consistency is the rule.47
Change may be slow, but learning more about professional typography is essential for legal writers. The technology at our fingertips can significantly improve communication. Our efforts in learning typography will increase our efficacy as writers, improve our system, assist DOAH and the courts, and improve our image in the public eye as professionals in the field of law.
1 What people know about typography can usually be traced back to typing class teachers and other unreliable sources. But they were teaching typing, not typography. What they knew about typography likely came from their typing teachers 30 years earlier. M. Butterick, Typography for Lawyers at 33 (2010).
2 Ruth Ann Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, J. of the Assoc. of Legal Writing Directors (Fall 2004), available at http://www.ca7.uscourts.gov/rules/painting_with_print.pdf.
3 See Robbins, Painting with Print at 113.
4 Id. at 111.
5 Butterick, Typography for Lawyers (2010). The book’s preface is by Bryan A. Garner, editor of Black’s Dictionary.
6 Butterick, Typography for Lawyers at 14.
8 Id. at 19, 21, 23.
9 Id. at 23.
10 Id. at 24-25.
11 Id. at 29.
12 Id. at 33.
13 Robbins, Painting with Print at 112.
14 Id. at 113. See also U.S. Court of Appeals, Seventh Circuit, Guidelines for Briefs and Other Papers, http://www.ca7.uscourts.gov/Rules/type.pdf. The “advice” is provided by Matthew Butterick.
15 Id. at 114.
16 The most prolific and probably the most conclusive studies were conducted from the late 1920s through the early 1960s. Most of those studies were initially published in the Journal of Applied Psychology. The most famous of the field’s scientists were Miles A. Tinker and Donald G. Paterson. Drs. Tinker and Paterson studied legibility as measured by the speed of reading. Miles A. Tinker, Bases for Effective Reading 15 (U. of Minn. Press 1965). See Robbins, Painting with Print at 114.
17 Robbins, Painting with Print at 113; and S. Kobayashi, Theoretical Issues Concerning Superiority of Pictures over Words and Sentences in Memory, Perceptual and Motor Skills 783, 784 (1996).
19 Id. at 114.
21 Butterick, Typography for Lawyers at 13.
22 “I have no idea why so many writers resist the one-space rule. If you’re skeptical, pick up any book, newspaper or magazine and tell me how many spaces there are between sentences. Correct — one.” Butterick, Typography for Lawyers at 42.
23 Butterick, Typography for Lawyers at 41.
24 Robbins, Painting with Print at 129.
25 Id. at 118.
26 Your response might be “but the Bluebook requires underlining.” No, it doesn’t. In its rules for practitioners, the Bluebook chooses to “keep with the tradition of underlining certain text,” but practitioners “may substitute italic type wherever underlining is used.” Bluebook at 3 (19th ed. 2010). Subsequent Bluebook rules say to “underscore (or italicize).” (For instance, Bluebook at B1.)
27 When comparing proportional to monospaced fonts, Ruth Anne Robbins retorts: “Rome is nicer than the Valley of the Dead Typewriters.” Robbins, Painting with Print at 120. “The bottom line is that proportionally spaced fonts are easier to read.” Id. at 121.
28 Id. at 121.
29 Butterick, Typography for Lawyers at 112.
30 Ruth Anne Robbins seems to have a less negative view of Times New Roman than Butterick. But she uses the features of this proportional font to demonstrate the rudimentary and unattractive features of the monospaced Courier. Butterick puts Courier in his “C-list” while Robbins recommends avoiding Courier altogether. Robbins, Painting with Print at 133.
31 Butterick says that his rankings represent practical and aesthetic considerations, not absolute merit. Some fonts on the F-list are not bad, just inept for a law office; some fonts on his A-list are not his favorites, but are reasonably useful.
32 Kerning reduces large gaps between certain letter pairs to make them consistent with the rest of the letter spacing. If you use paragraph and character styles, kerning may be turned on as part of your style definitions. How to turn on kerning — Word: Right-click in the text and select <Font> from the menu. Click <Character spacing> or, in Word, 2010, the <Advanced> tab. Check the box that says <Kerning for fonts ___ Points and above>. Put the number 8 in the point size box. WordPerfect: <Format> -> <Typesetting> -> <Word/Letter Spacing> -> <Automatic Kerning>.
33 Robbins, Painting with Print at 116.
34 Butterick, Typography for Lawyers at 87.
35 Robbins, Painting with Print at 120.
36 Id. at 118.
37 Id.at 119.
38 Id. at 122.
39 Butterick, Typography for Lawyers at 90.
40 Id. at 134.
41 The use of hard break lines also is a way to eliminate “orphans” and “widows” — when only the first line of a paragraph appears at the bottom of the first page or when only the last line of the paragraph appears at the top of the next page. Orphan and widow controls are built into our word processors and, most of the time, are turned “on.” The controls may be turned “off” when we have to squeeze a line or word into a document.
42 Robbins, Painting with Print at 130.
44 Butterick, Typography for Lawyers at 136.
45 Robbins, Painting with Print at 134.
46 Id. at 124.
47 The “caption” includes DOAH’s full name or the full name of the court or agency, the parties’ names, the case numbers, the line underneath to the left that sits above the title of the document and the title. Consistency in the typeface requires that all parts of the caption be set in the same font, whether boldface or not. Bold should not be used for only part of a caption, such as the name of the court only or the title.
Suzanne Suarez Hurley is senior counsel for the Agency for Health Care Administration, St. Petersburg office. She has practiced administrative law for 13 years. Formerly a typesetter and graphic artist (1973-1982), she became a registered nurse in 1984, and received a bachelor of science in nursing in 1986. She received her J.D. in 1992 from the Florida State University College of Law. Her practice is exclusively healthcare facility regulation.
This column is submitted on behalf of the Administrative Law Section, Judge Foster Scott Boyd, chair, and Paul Amundsen, editor.