Tag Archives: typography

10 Tips for Italics in Appeal Briefs

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imagesBryan A. Garner’s The Redbook: A Manual on Legal Style (West, 2d Ed. revised, 2006), offers 10 tips on using italics in appeal briefs.

Italicize -

  • for emphasis (rather than underlining)
  • foreign words and phrases (that have not been anglicized)
  • a letter, word, or phrase when defining it (rather than quotation marks)
  • names of cases (rather than underlining)
  • titles of books, articles, and other publications
  • citation signals (such as see, cf.)
  • subsequent history in a case citation

Do not italicize:

  • words or phrases already within italicized matter (use roman instead)
  • punctuation marks after the italics unless it is part of the matter itself
  • when italicizing becomes overused.

Of these tips, three strike me the most. The first is using italics for emphasis. Garner suggests that italics for emphasis is best used within quoted material to show relevance to the point you are making. When writing your own words, there are other ways to highlight your point. You can use word order, strong verbs and precise nouns, and pithy quotations. Other rhetorical techniques include using repetition, parallelism, and conjunctions.

The next tip that strikes me is using italics for book titles. Garner elsewhere explains that the Bluebook and the ALWD diverge on this point. He agrees with the ALWD that book titles are italicized; the Bluebook says use large and small caps.

In South Carolina, either citation form will work. Rule 268, SCACR, suggests that we use either the Bluebook, or A Guide to South Carolina Legal Research and Citation, or any other publication. In turn, the SC Guide provides that either italics or large/small caps may be used for book titles.

Lastly, Garner joins those steeped in typography by forbidding underlining case names. Absolutely forbids it. Lawyers in South Carolina may get tripped up here because Rule 268, SCACR, underlines case names when explaining how to cite them. This is just part of the bad typography suggested in the SC appellate rules. Underlining case names is only a suggestion, however, and can give way when other publications suggest italics.

Any thoughts on using italics for emphasis? In case names? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

Brief-Writing Tips From Judge Easterbrook

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Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals has given interviews on how to decide what to appeal, common mistakes on appeal, avoiding “counter-punching,” and how to style a persuasive brief. He emphasized three points:  1) cull and frame the issues; 2) write for the generalist judge; and 3) use good typography

On choosing issues, Judge Easterbrook encouraged appellants to consider the standard of review and whether winning the issue achieves a reversal. He explained that the Court is more likely to reverse on legal issues because district courts rarely make clearly erroneous factual findings. He also expressed dismay at appellants who raise issues that cannot change the result, where the appellant still loses even if they win the point.

Judge Easterbrook further advocated that respondents frame the issues and not “counter-punch.” Counter-punching,” he explained, is when respondents answer the opening brief’s points A, B, and C by arguing not-A, not-B, and not-C. Judge Easterbrook urged respondents to tell the Court why they should win before they say why the other side should lose.

He also reminded attorneys that judges are generalists and favor writing that is simple and direct. He suggested that attorneys learn their writing style from the New Republic and the Weekly Standard, not law books.

Lastly, Judge Easterbrook emphasized good typography. He explained that word processing programs deviate from professional printing standards, urged attorneys to use these standards, and suggested the Seventh Circuit’s guidelines.

Does anyone have other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

 

Using a Table of Contents Persuasively

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In South Carolina (and other jurisdictions), appellate briefs begin with a Table of Contents. The Table’s obvious purpose is to tell the reader where to find the various parts of the brief. In that vein, headings may be used in the Statement of Facts, and repeated in the Table of Contents, to give sign posts through the story or narrative.

Argument headings can do more. They may be used to achieve the greater aim of persuading the reader why you should win.

The body of briefs must contain argument headings on each particular issue addressed. Rule 208(b)(1)(D). These headings may be included in the Table of Contents and, if well written, act as an effective point-by-point summary and outline of your views. The goal is to allow the judge to skim the Table of Contents, evaluate the brief’s logic and coherence, and understand why you believe that you should win. And accomplish this before turning another page.

Often, the Table of Contents is the last part of the brief that is written.The focus at that point may be on getting the page numbers right than on whether the argument headings show that the arguments are well summarized and organized.

by Antonin Scalia and Bryan A. Garner

by Antonin Scalia and Bryan A. Garner

How can one make the Table of Contents more helpful? Ross Guberman’s book, Point Made, uses examples from top appellate advocates to say that argument headings and subheadings should be complete sentences nested within each other. In Making Your Case, Justice Scalia and Bryan Gardner agree that argument headings are most effective if they are full sentences announcing not just the topic but your position on the topic.

Guberman further notes that top advocates love to use “because” in their argument headings. With this approach, the headings not only announce the topic and conclusion — the headings also summarize why the conclusion is correct.

Which heading do you find more persuasive?

  • Standard of Review
  • The standard of review is for any evidence to support the verdict.
  • The standard of review requires a new trial because no evidence supports the verdict.

Lastly, author Ruth Anne Robbins in her article, Painting with Print, notes that brief writers may use different fonts and type point sizes for headings stated in the Table of Contents than from the headings stated in the body of the brief.  Id. at pp. 128, 133. This allows brief writers the ability to retain the traditional outline form for the Table of Contents while applying better typography in the body of the brief.

Has anyone out there encountered a well written Table of Contents? Please let us hear from you. You can reach me at www.attorneyroberthill.com.

 

 

 

 

SC Appellate Form Suggests Bad Typography

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The last post covered why a brief’s appearance matters. This one discusses the mandatory requirements and how South Carolina’s recommended form for an appellate brief suggests bad typography.

Rule 267, SCACR, governs a document’s form. The typographical rules are few: type size must be standard 12-point or larger, the text must be double-spaced, and the left margin must be an inch and a half. To supplement this rule, the Court has issued a form that may be followed. Appellate Form 13 This form is recommended but not required. Rule 270, SCACR.

There are at least five good reasons not to follow it.

THE FORM CONTAINS ALL CAPS. STUDIES SHOW THAT ALL CAPS IS THE LEAST LEGIBLE OF ALL WRITING. Robbins, Painting With Print, 2 J. Ass’n Legal Writing Directors 108, 115-118 (2004). In her treatise, Chief Justice Toal recommends against using all caps even though the recommended form suggests it. Toal, Vafai, and Muckenfuss, Appellate Practice in South Carolina (2d ed. 2002) at 231.

tfl-book-coverThe form next underlines case names. Matthew Butterick, author of Typography for Lawyers, states that one should never underline because it makes the text harder to read. The Seventh Circuit agrees that underlines text interferes with reading and impairs comprehension. Seventh Circuit Guidelines on Typography.

Thirdly, the form is written in Times New Roman. There is nothing inherently wrong with Times New Roman, and it is certainly better than monospaced fonts that give the text an obsolete typewriter look. But Times New Roman was designed for newspapers that print relatively short articles in narrow columns. For briefs, the Seventh Circuit recommends Century and other fonts designed for books. Seventh Circuit Guidelines on Typography. Rule 33(b) of the United States Supreme Court Rules requires a font in the Century family.

The South Carolina form also places two spaces after each period. Years ago, a boss scolded me for only placing one space after a period. He was wrong. As a blogger recently noted, the Chicago Manual of Style, the Seventh Circuit, and others agree that only one space follows a period.

Lastly, the official form sets off paragraphs with both full tab indentions and extra spacing between paragraphs. Using both is a mistake. The Seventh Circuit adds that the first-line indention for a paragraph should only be a 1/4 inch or less rather than the width of a full tab. Seventh Circuit Guidelines on Typography. Bryan Gardner, Editor of Black’s Law Dictionary, agrees. Gardner, The Winning Brief (2d Ed. 2004) at Tip 67.

Are there any other typographical problems with Appellate Form 13 that I missed? Please let me know. You can reach me at www.attorneyroberthill.com.

 


 

 

 

 

Appellate Briefs – Appearance Matters

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This post and the next two cover the appellate brief’s appearance and format. Printers and graphic designers know this better as “typography,” meaning the style, layout, and appearance of the printed word. Well known features include ALL CAPS, bold, italics, and underlines.

Why does this matter? In her and her co-author’s treatise, Chief Justice Toal of the South Carolina Supreme Court explains that poor appearance may detract from the content. Toal, Vafai, and Muckenfuss, Appellate Practice in South Carolina (2d ed. 2002) at 231.

Other judges agree. Justice Antonin Scalia and Bryan A. Gardner, Editor of Black’s Law Dictionary, bluntly say, “Don’t spoil your product with poor typography.” They cite an author who has seen law firms spend hundreds of thousands of dollars on technology only to produce documents that look like they were typed on a 1940s Underwood. Scalia and Gardner, Making Your Case – The Art of Persuading Judges (2008) at 136.

The federal Seventh Circuit agrees that it is worth while to invest some time in improving the quality of the brief’s appearance and legibility. It notes that appearance will not make your argument better, but will ensure that the judges grasp and retain your points with less struggle. “That’s a valuable advantage, which you should seize,” the Court states. Seventh Circuit Guidelines on Typography.

This is also not just a matter of taste any more than correct spelling or proper grammar is. In an oft-cited article, Ruth Anne Robbins explains the psychological and educational science behind how graphic design principles affect a reader’s comprehension and retention. The science shows that legibility and organization matter. Robbins, Painting With Print, 2 J. Ass’n Legal Writing Directors 108, 113-125 (2004).

Lastly, Matthew Butterick, an attorney and Harvard-trained graphic designer and typographer, has written Typography for Lawyers. His website puts the issue colorfully by likening poor typography to showing up for oral argument in jeans and sneakers. You use good typography, he contends, for the same reason you wear proper court attire to oral argument — you want to persuade and not just be heard.

I became interested in this when I confronted a brief that looked like a ransom note. In another case, the brief’s record references were placed in bulleted, double-indented, and single-spaced text that continued for pages and pages. I stopped reading several times before struggling through it. The experience was painful.

Has anyone else had similar experiences? If so, please reach me at www.attorneyroberthill.com.