Legal Writing Editor

As I put final touches on the second part to 10 takeaways from Typography for Lawyers, I wanted to address an issue that – though discrete – can be applied by any legal writer: we must have a sharp eye for, and aggressively eliminate, wordy phrases (Garner’s term) like in order to, which always jumps off the page of any brief I read as the waste of laser-printer ink.

I don’t understand why any legal writer would use in order to, unless he must use it because he must quote authority that contains it.

What’s wrong with in order to, you ask?

It could be written to without losing any effect. Three words = one word. It’s that simple. Garner’s Redbook (pp. 159-60) lists in order to in a section where he identifies other wordy phrases that must be pared down, such as in light of the fact that (because); due to the fact that (because); make reference to (refer), etc. For other authority, I refer you to Garner’s Legal Writing in Plain English (pp. 40-41). There are many other non-Garner authorities (he cites them all); this problem, unfortunately, isn’t new.

(Note: You can access an updated version of this column here).

As I’ve posted, I recently finished reviewing Matthew Butterick’s Typography for Lawyers. Typography for Lawyers runs only 210 pages, and it’s an easy read. The book begins with a Foreword by Bryan Garner, who claims that “[i]f Matthew Butterick didn’t exist, it would be necessary to invent him.” Given that preface, I thought I’d be reading a book written by a Garner disciple, and, to an extent, that turned out to be true. Both Garner and Butterick take their jobs very seriously. Butterick, like Garner, is a fantastic, conversational writer. Like Garner, his writing ability may only be matched by his – shall we say – “self-confidence.” Like Garner’s usage advice, Butterick’s typography advice generally allows for little or no wiggle room. There is right and there is wrong.

But having attended multiple Garner legal-writing seminars over the years, the truth may be that Butterick has influenced Garner as well. For example, it was not until last year that Garner begin recommending in his Advanced Legal Writing & Editing seminar that you should use one space after a period instead of two; indeed, I cannot find Garner raising the one-space-after-a-period issue in the 2004 second edition of The Winning Brief. So Typography for Lawyers definitely breaks a lot of new ground. My next two posts will be dedicated to what I think are the 10 best takeaways from the book. The first five, in no particular order of importance, follow.

Use only one space between sentences. Butterick says that you have no choice when deciding how many spaces should be between sentences (indeed, after any punctuation mark): There should only be one space. He cites multiple typography authorities, including the Chicago Manual of Style, Garner’s Redbook, and the 7th Circuit’s Requirements and Suggestions for Typography in Briefs and Other Papers. True, I’ve pointed out that other writers have taken issue with the historical foundation of the one-space rule, but I’ve found no good authority (including the local rules of the many states and federal courts to which I’m admitted) that dictate that two spaces between sentences must or should be used in documents filed with the court.

The important question, however, is whether using one space between sentences will raise the ire of the judge that notices it in a brief (you can convince the partners you work with or for by pointing out Butterick’s authorities). The judge, for example, may herself use two spaces between sentences, not understand why you are using only one space, and consider you ill-informed. At least in Minnesota, for example, the Minnesota Supreme Court and Court of Appeals use two spaces after periods. And I’ve never seen a Minnesota federal judge use only one space after a period.

I think a fear that you will receive a cool reception from a judge if you use only one space is unfounded. There is little chance that using one space between sentences will elicit a question at oral argument, and if it does then you can explain, citing Butterick and his authorities, why you chose to use one space instead of two. Instead of making you look like an uninformed fool, such a discussion may end up making you look more well versed in the niceties of legal writing. So follow Butterick, and use one space after punctuation marks, including periods.

Never underline. Butterick also advises never to underline text for emphasis or otherwise. Like two spaces after a period, underlining is a holdover from the typewriter era, where, as many have forgot (or in my case never knew) did not allow for bold or italics. On a typewriter, underlining was the only way to emphasize text. Now that we don’t use typewriters, there’s no need to underline. In my practice, I used to underline once and a while to emphasize particular words because the Bluebook requires case names to be italicized and I wanted to distinguish between the two. My view at that time was that underlining allowed to reader to distinguish easily between the italicized case names and text I wanted to emphasize. A few years ago, I stopped underlining for emphasis and started italicizing both case citations and the words that needed to be emphasized in the text. The world did not end. Given how ugly and blunt underlining can be, start using italics and bold to emphasize any text that deserves to stand out from the rest.

Don’t use monospaced fonts. Fonts such as Courier and Monaco are monospaced fonts, meaning that every character is the same width. Fonts such as Times New Roman are proportional fonts, meaning that the characters vary in width. Monospaced fonts are another holdover from the typewriter era. According to Butterick, monospaced fonts were invented so that they could meet the mechanical needs of typewriters, not “to win beauty contests.” (p.81). Butterick suggests that some courts may require monospaced fonts. But I don’t know of a single court that does so. You occasionally will see some opinions written in monospaced fonts. For example, Minnesota Senior District Court Judge David S. Doty still issues his opinions in Courier. But unless you’re a federal judge with life tenure, it would behoove you to stop using monospaced fonts for any legal writing.

Don’t use Arial font, and try an alternative to Times New Roman. While we are on the topic of fonts, Butterick also says not to use Arial, which he describes as among the most awful fonts “on the planet,” and whose use “is permanently associated with the work of people who will never care about typography.” (p.82-83). Instead of Arial, Butterick recommends Helvetica, Franklin Gothic, or Gill Sans. Butterick’s distaste for Arial seems to be equally matched by his dislike for Times New Roman, for which he dedicates two pages of his book entitled “A Brief History of Times New Roman.” (p.110-11). Butterick thinks that the popularity of Times New Roman is the result of its ubiquity, not necessarily its quality. It is “the font of least resistance,” and is not a font choice but rather is “the absent of a font choice, like the blackness of deep space is not a color.” (p. 110). If you like Times New Roman, Butterick recommends trying similar-looking professional fonts such as Plantin, Starling, or Bembo Book.

But here’s the rub: These professional fonts, and many other fonts recommended by Butterick, including his own font, Equity, must be purchased under the terms of a license. As Sam Glover has pointed out, it’s probably wise for ordinary people (including lawyers) to stick with system fonts because of the minefield of licensing issues that can arise from purchasing and using professional fonts. I would add an additional point: While it may be feasible for a solo practitioner or perhaps a small firm to purchase and use a professional font, the headaches from licensing and policing the use of these fonts at a mid-size to large firm probably outweigh any marginal benefits from their use.

Imagine having a conversation with a managing partner at a large firm where you explain that you no longer want to use Times New Roman, and that you want the firm to purchase a professional font such Plantin. For full disclosure, you also explain that not only will the new Plantin font cost the firm money and that it is only licensed for particular uses and users, it also may not display properly if the font is not correctly embedded before the user shares the document with others who have not purchased it. You may get a response like: “Interesting proposal. Why don’t you go back to work.” (Aside: Sam Glover and Matthew Butterick take this discussion to the next level in the comments to Glover’s article linked above. I recommend reading this discussion in its entirety, if only to confirm that it may be wise to avoid purchasing and using professional fonts).

Don’t use superscripted ordinals. After that pedantic discussion, let’s close with what should be obvious to any good legal writer: Never permit Microsoft Word to automatically change ordinals to superscript. I routinely find superscripted ordinals in case citations in briefs from opposing counsel, and occasionally I’ll find them in judicial opinions. I am convinced that 95% of these superscripted ordinals are the result of Microsoft Word’s default treatment of ordinals. That software automatically converts ordinals to superscript whether you want it to or not. As Butterick points out, Bluebook Rule 6.2(b)(i) (2010) prohibits the use of superscripted ordinals. So change your default settings in Word, and make sure that you do not use superscripted ordinals.