Derek H. Kiernan-Johnson*
- Download PDF file (624 KB) Get Adobe Reader
The PDF version includes font examples not available in the html version.
Most lawyers today self-publish, using the same word-processing software they use for composition, and letting their software’s default settings determine their documents’ typography. Those settings, however, are not optimized for legal writing. And lawyers who rely on software defaults, especially in documents submitted to courts, do so at their peril. As Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit has explained, “Desktop publishing does not imply a license to use ugly or inappropriate type and formatting—and I assure you that Times New Roman is utterly inappropriate for long documents . . . . It is designed for narrow columns in newspapers, not for briefs.”1
So brief writers must make choices. Existing commentary on legal writing and typography2 helps explain what these choices are and how to make them. Consciously or not, this commentary has been framed in general and neutral terms: how can brief writers improve the typography of their briefs, whatever the content of those briefs might be and irrespective of the context in which they are written. And by “improved” typography, what we typically mean are such neutral (-sounding) goals as better legibility and readability and increased reader comprehension and retention.
But not every text, or part of every text, wants to be comprehended easily or later remembered. Much of the art of brief writing (and legal persuasion more generally) involves highlighting the good and de-emphasizing the bad. Lawyers strive to stifle meaning as often as they seek to create it. As former appellate advocate and now Chief Justice John G. Roberts once put it, “Judges have no interest in the court reaching a ‘wrong’ result, but fifty percent of clients do.”3
This article explores one content-driven, context-specific way that typography might be used in legal briefs: to reinforce, complement, and independently create narrative meaning. Part I outlines those aspects of contemporary typography most germane to legal briefing. Part II offers six examples of how these principles might be used. The first few examples are “easy” cases—soft touches that are likely to be low risk, unlikely to offend, but mild in their potential impact—such as imitating Supreme Court typography or reflecting a law office’s brand identity through typeface choice. The next cases explore how, in ways perhaps more meaningful to authoring lawyers and their clients than to the judges who read their briefs, typography might further outsider narratives or reflect character and point of view. The fifth case suggests ways that typography might augment a brief’s narrative trajectory and help clothe a progressive legal argument in traditionalist clothing. The final example explores how typography might be used negatively (and perhaps inappropriately and unethically) to thwart an opposing party’s narrative goals and obscure the meaning of inconvenient facts and law. For, as master typographer and author Robert Bringhurst has warned, “Typography is an art that can be deliberately misused. It is a craft by which the meanings of a text (or its absence of meaning) can be clarified, honored and shared, or knowingly disguised.”4
Part I: Typography
“Typography,” like “law,” is an enormous field evading easy definition.5 One approach, sufficient here, frames typography as the mechanical notation and arrangement of language.6
As the mechanical notation of language, typography differs from nonmechanical lettering arts such as calligraphy and graffiti. But typography is not purely mechanical in its expression, and instead reflects a “continual tension between the hand and the machine, the organic and the geometric, the human body and the abstract system.”7 As explored in Part II, these rationalist vs. humanist tensions parallel those found in American law, such as legal formalism vs. legal realism, rules vs. standards, text vs. purpose, and law as grid vs. law as energy.
As the arrangement of language, typography encompasses more than just the shapes of language’s letters, extending to the crucial spaces within, between, and around letters, words, and blocks of text. This interplay between figure and ground occurs at each stage and level of typography, from the earliest stages of initial type design to the final stages of document publication, and from the smallest detail of interior individual lettershape (such as the contours of the “loop” on the bottom story of a lowercase “g”) to the highest level of overall document structure.
Much of the typography falling under this definition is not relevant to legal writing. And much of that typography relevant to various types of legal texts, such as contracts, demand letters, statutes, opinions, disclaimers, and so on, is not relevant to legal briefing. Legal briefing imposes several serious constraints on typographical decision making. The sources of these constraints include audience needs and expectations, the nature of the text appearing in briefs, and, to a much lesser extent than most authors of briefs might think, typographical constraints imposed by court rules.8
These constraints take off the table some of the major design choices relevant to typography in other contexts. Things such as paper size, weight, construction, and color; text orientation and text color; and the number and width of columns are all fairly immutable, frozen in late 20th Century, typewriter-era office conventions.9 The paper, for example, must be white, 8.5 x 11-inch office stock, with text appearing in “portrait” (vertical) orientation in a single, wide, centered column of black text. While there are exceptions, such as the smaller, “booklet” format mandated by United States Supreme Court Rule 33,10 these basic layout limitations are either set by rule or, if not, so established by convention that deviating from them, even to dramatically enhance legibility and readability or for other noble typographic, economic, or even environmental reasons,11 is, for now, impracticable.
Setting aside, for now, portions of a legal brief such as its cover page, signature block, and even its headings, most of a brief involves running, extended text. This affects its typography significantly. Extended text should not, usually, draw attention to itself. Setting such text, sometimes called “detail” or “micro” typography,12 is a subtle craft, the artistry of which “comes in offering the information in such a way that the reader doesn’t get sidetracked into thinking about the fact that someone had to carefully prepare every line, paragraph, and column into structured pages.”13 And detail typography often achieves this goal—most readers read without consciously noticing the typographical features of what they are reading.14
Detail typography can be thought of as involving the shaping—and spacing—of letters, words, and lines of text.15 “Letters,” as used here, means more than just the standard 26 letters of the modern Latin alphabet. It includes other “characters” or “glyphs” such as Arabic numerals (or “figures” in typographic parlance) as well as other analphabetic characters such as punctuation marks. 16
A collection of related letters may be called either a “typeface” or a “font.” These terms are sometimes used interchangeably, 17 and the meaning of “font” is itself in flux as a result both of changing usage and advances in digital typographical technology.18 The terms will not be used interchangeably here. Instead, this article will follow a distinction between “typeface” (or just “face”) as the design of a set of letters and “font” as the particular physical or digital manifestation of that design.19 No further distinctions will be made here, such as those that could be and sometimes are made between “fonts” of different widths (such as condensed or extended), different weights (such as light or bold), or sizes (such as Times New Roman 10 and Times New Roman 12).20
As an example of this distinction in action, Hermann Zapf’s typeface Palatino (1948) has been digitally rendered many times, sometimes carefully, respectfully, and legitimately, and sometimes less so and through alleged “piracy.”21 One example of the latter is the font Book Antiqua, a “core”22 font featured in early Microsoft products that has been called a “knockoff” and a “ripoff,”23 but that Microsoft now bundles as a legitimate, properly licensed example of Zapf’s design, the font Palatino Linotype, which functions well both as a display face and as a text face.24
* © Derek H. Kiernan-Johnson 2010. Legal Writing Professor, University of Colorado School of Law. An early draft of this article was presented at a faculty works-in-progress colloquium on July 9, 2009, at the University of Colorado Law School; many thanks to my colleagues at Colorado for their responses and suggestions. Special thanks to Pierre Schlag for moderating that colloquium. Many thanks as well to the organizers of and participants at the Applied Legal Storytelling Conference, Chapter Two: Once Upon a Legal Story, held at Lewis & Clark Law School in Portland, Oregon, where this paper was presented on July 24, 2009. Very special thanks to Ruth Anne Robbins for her many thoughtful comments throughout the progression of this article and, of course, for writing the ground-breaking 2004 J. ALWD article from whose title this article takes inspiration: Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. ALWD 108 (2004). Special thanks to Chief Judge Frank Easterbrook for his thoughts on typography and the writing process, as well as for all of his work on behalf of typography in legal texts. Thanks also to the many type designers, typesetters, and sundry typophiles who shared their thoughts with the author, most especially the type designers and educators Gerard Unger and Erik Spiekermann, who, with their very different styles but equal mastery of type design, this author considers, respectively, typography’s Vincent Van Gogh and J.S. Bach. Finally, many many thanks to the author’s wife Eileen and son Ronan, who tolerate and even accept with grace the author’s frequent and intense bouts of typomania.
1 Frank H. Easterbrook, Speech, Challenges in Reading Statutes (Chi., Ill., Sept. 28, 2007) (available at http://lawyersclubchicago. org/docs/Challenges.pdf ) (accessed Feb. 27, 2010). As James Felici has noted, “Times is probably used inappropriately more than any other typeface today. Ironically, it’s no longer commonly used in newspapers, not even the Times.” James Felici, The Complete Manual of Typography: A Guide to Setting Perfect Type 70 (Peachpit Press 2003).
2 At the almost certain risk of leaving something out and with apologies for doing so, this existing commentary includes Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. ALWD 108, 112 (2004) [hereinafter Robbins, Painting with Print]; Raymond P. Ward, Writer’s Corner: Good Writing, Good Reading: Advice on Typography, DRI For the Defense 60 (Jan. 2005); Seventh Circuit, Requirements and Suggestions for Typography in Briefs and Other Papers, http://www.ca7.uscourts.gov/rules/type.pdf (accessed Feb. 28, 2010); Richard K. Neumann, Jr., & Sheila Simon, Document Design, http://www.aspenlawschool.com/books/neumann.simon_legalwriting/ premium/default.asp (online supplement to Legal Writing (Aspen 2008) (accessed Mar. 5, 2010); Wayne Schiess, Schiess’s Basic Document Design for Lawyers, http://www.utexas.edu/law/faculty/wschiess/legalwriting/2008/07/schiesssbasicdocument- design-for.html (accessed Mar. 5, 2010); Raymond P. Ward, The Right Tool for the Job 16 Certworthy (Winter 2008); Bryan A. Garner, The Redbook: A Manual on Legal Style § 4 (2d ed. 2006); Bryan A. Garner, Legal Writing: Pay Attention to the Aesthetics of Your Pages, Student Law. 14–16 (May 2008); Bryan A. Garner, The Aesthetics of Your Pages, in Garner on Language and Writing 98–101 (ABA 2009); Matthew Butterick, Typography for Lawyers, http://www.typographyforlawyers. com/ (accessed Jan. 18, 2010); Linda L. Morkan, Appellate Advocacy, The Gestalt of Brief Writing: Visual Rhetoric in the Appellate Brief, DRI For the Defense 27 (July 2008) (available at http://www.rc.com/publications/Morkan.pdf); Gerald Lebovits, Document Design: Pretty in Print—Part I, 81 N.Y. St. B. J. 64 (March/April 2009); Gerald Lebovits, Document Design: Pretty in Print—Part II, 81 N.Y. St. B.J. 64 (May 2009); Peter Friedman, Yes, Lawyers Need to Be Experts in Design and Typography, Too (June 30, 2009), http://blogs.geniocity.com/friedman/2009/06/yes-lawyers-need-to-be-experts-in-designand- typography-too/ (accessed Feb. 25, 2010).
3 John G. Roberts, Jr., Thoughts on Presenting an Effective Oral Argument, Sch. L. in Rev. 1997, 7–1 (Natl. Sch. Bds. Assn. 1997) (emphasis in original).
4 Robert Bringhurst, The Elements of Typographic Style 17 (3d ed., Hartley & Marks 2005).
5 E.g. Phil Baines & Andrew Haslam, Type & Typography 6–7 (2d ed., Waston-Guptill Publications 2005).
6 Id. at 10.
7 Ellen Lupton, Thinking with Type: A Critical Guide for Designers, Writers, Editors, and Students 13 (Princeton Architectural Press 2004).
8 Not all court rules are as stringent as they are remembered or imagined to be. See e.g. Fed. R. App. P. 32 (requiring briefs to “be set in a plain, roman style,” permitting either 14-point or larger proportional or 10.5 characters/inch monospaced typeface, permitting sans-serif type in headings and captions, allowing italics or boldface for emphasis, italics or underlining for case names, and permitting courts by local rule or orders in particular cases to relax these requirements); Robbins, Painting with Print, supra n. 2, app. (outlining “all federal appellate and state court rules affecting typography used in briefs”); Butterick, supra n. 2, app.
9 Cf. Felici, supra n. 1, at 80 (discussing effect of typewriter conventions on the typography of business documents generally).
10 See U.S. Sup. Ct. R. 33.
11 See Ruth Anne Robbins, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-Imagining Court Rules and Document Design Strategies, 7 J. ALWD 193 (2010) (making several typographic recommendations for decreasing briefing’s environmental impact) [hereinafter Robbins, Conserving the Canvas].
12 See e.g. Jost Hochuli, Detail in Typography 7 (Charles Whitehouse trans., Hyphen Press 2008) (“detail” typography); Victoria Squire, Getting It Right with Type: The Dos and Don’ts of Typography 10 (Laurence King Publg. 2006) (“microtypography”).
13 Erik Spiekermann & E.M. Ginger, Stop Stealing Sheep & Find Out How Type Works 15 (2d ed., Peachpit Press 2003).
14 Gerard Unger, While You’re Reading 11 (Mark Batty Publisher 2007).
15 See e.g. Hochuli, supra n. 12, at 5; Lupton, supra n. 7, at 9.
16 This is not the only way to define these terms and this approach does gloss over certain distinctions that might be useful in a different context. See e.g. the distinction between “character” and “glyph” in Felici, supra n. 1, at 297, 305.
17 See e.g. AlexW. White, Thinking in Type: The Practical Philosophy of Typography 202 (Allworth Press 2005) (including glossary entry for “font” notes “[a]lso called Face, Typeface, and in England, Fount (though pronounced ‘font’)”); Unger, supra n. 14, at 214 (index listing for “font” listing reads “[s]ee typefaces”).
18 Baines & Haslam, supra n. 5, at 6; Felici, supra n. 1, at 10–13.
19 The approach used here is similar to that used by Felici. See Felici, supra n. 1, at 29–30. The word “font” “comes from an early French word meaning ‘molding’ or ‘casting.’ ” Id. at 10.
20 Among others, Rob Carter, Ben Day, Philip Meggs, and Victoria Squire make this latter, size-based distinction. See Rob Carter, Ben Day, & Philip Meggs, Typographic Design: Form and Communication 33 (4th ed., John Wiley & Sons 2007) (defining “font” as “a set of characters of the same size and style containing all the letters, numbers, and marks needed for typesetting”) (emphasis added) [hereinafter Carter et al., Typographic Design]; Squire, supra n. 12, at 16 (“The term ‘font’ relates to a specific size and style of a given typeface.”) (emphasis added).
21 Bringhurst, supra n. 4, at 239–40. “Piracy” is in quotes because legal protection for digital font files is currently different from and less than that for other digital creations that are usually the subject of digital piracy. See Jacqueline D. Lipton, To © or Not to ©? Copyright and Innovation in the Digital Typeface Industry, 43 U.C. Davis L. Rev. 143 (2009).
22 “Core” fonts are those fonts that have been bundled with a wide variety of operating systems and software programs such that they are likely to be found on almost all computers. See Felici, supra n. 1, at 298. While some core fonts are well designed, they are often less than ideal for printing and are the subject of intense criticism. See e.g. Butterick, supra n. 2, at “Operating system fonts” (railing against operating-system fonts for several reasons, including that many are optimized for screen display) (accessed Jan. 18, 2010). So that readers may view for themselves and otherwise experiment with as many of the fonts discussed in this article as possible, this article strives to use core fonts in its examples and diagrams.
23 E.g. John Butler, The Palatino FAQ (1998), http://www.mindspring.com/~fez/palatino/palfaq1.0.txt (“knockoff”) (accessed Jan. 18, 2010); Luc Devroye, More on the Palatino Story (Nov. 30 2002), http://cg.scs.carleton.ca/~luc/palatino2.html (“ripoffs”) (accessed Jan. 18, 2010); see also Hermann Zapf, Alphabet Stories: A Chronicle of Technical Developments 71 (2d ed., RIT Cary Graphic Arts Press 2008).
24 Bringhurst, supra n. 4, at 239–40; MS Corp., Microsoft Typography: Palatino Linotype–Version 5.00, http:// www.microsoft.com/typography/fonts/font.aspx?FMID=1624 (accessed Jan. 18, 2010). Like Times New Roman, Century Schoolbook, and other core fonts, Palatino Linotype’s widespread availability makes it a reliable choice in terms of interoperability.