For the past few years, the importance of choosing the right typeface for an appeal brief has been a topic of discussion among attorneys, publishers, and, at times, the courts.
The reception varied from thoughtful and grateful to downright dismissive. Lawyers don’t like to be creative and often don’t like anything new. So if you tell them to change their memory fonts to something other than Times New Roman, the response might be skeptical or even hostile. After all, what difference does it make?
The answer is a lot, and apparently the courts think so too. There have been a number of recent pronouncements from various appellate courts and individual judge decisions, which emphasize the importance of choosing the right policy and avoiding choosing the wrong one.
With or without wheelbase?
The courts have established rules on pleadings and factums, but only in general terms. Most commonly, they said body text should be in a serif font, although headings could be in a sans serif font. The difference is the end of a letter or character – serifs are small extensions that, in theory, make reading easier because they take you to the next character. Sans serif or sans serif fonts are more blocking. Not that it’s bad – they make great headlines because headlines are meant to be short and stand out.
The courts, however, have not been so quick to speak more specifically about fonts, at least when it comes to rules. (See, Fed. R. App. P. 32(a)(5), (a)(6); 7th Cir. R. 32; DC Cir. R. 32.) A lawyer we know once handled a case at the Alabama Court of Criminal Appeals. The rules were silent on font and font size.
When he called the clerk to ask if the court had any preferences, there was a long pause, and the clerk he was talking to said, “Well, we’d rather the guy wasn’t too small.” He opted for a larger than normal font for his memoir, which meant swapping words for easier reading.
But it’s still not easy. Even if you’re technically following the rules, sometimes you might run into a judge who thinks you’re somehow playing the system if you’re using a particular font.
For example, Garamond is a perfectly acceptable serif font that is much more compact than most. Therefore, if you used it, you might get more words on a page if you were operating under a page length limit.
The DC Circuit, however, recently took a stance discouraging the use of Garamond because it “looks smaller than” Century and Times New Roman, making the text “harder to read”. (See, United States Court of Appeals District of Columbia Circuit, Notice: Preferred Typefaces for Briefs (March 16, 2021).)
play the system
Courts also frown on manipulating policies to gain advantage. The U.S. District Court for the District of Minnesota faulted an attorney for switching from Times New Roman (used in all previous briefings) to Garamond for a responding brief. The result was more words in the same number of pages.
The court didn’t even like it a bit: “By using a smaller font, defendants gained an advantage over court-imposed page limitations.” (See, In Re: RFC & RESCAP Liquidating Tr. Actions, #13-3451 (SRN/HB), at *2 (D. Minn. April 12, 2018) (#3408).)
As a result, the court gave the other party additional pages of information and insisted that the parties use Times New Roman for all subsequent documents “because it is easier to read”.
While “easier to read” is a relative judgment, trying to game the system, even if the rules allow it, is probably never a good idea.
More recently, courts have begun to add much more specificity to the general caveat of the rules regarding serifs and non-serif and have begun to make both suggestions and requirements regarding font selection.
Some courts, such as the Seventh Circuit, find font choice so important that they have a guide outlining font choices that they believe make memoirs easier to read. (See, United States Court of Appeals for the Seventh Circuit, Requirements and Suggestions for Typography in Briefs and Other Papers, available at: http://www.ca7.uscourts.gov/ftips/type.pdf.)
The Seventh Circuit Guide provides several tips to increase brief readability. These tips include using proportionally spaced serif type fonts – preferably those designed for books – so readers can more easily distinguish the letters, increasing reading comprehension.
For example, the guide highlights Times New Roman, which was created by The Times of London to provide its audience with “speed reading”. Lawyers, on the other hand, don’t want their audience to quickly read their briefs and throw them away. Instead, lawyers strive for maximum comprehension and retention, which requires exploring different typefaces.
Other courts agree. The Eighth Circuit website directs users to the Seventh Circuit Typographic Guide. (See, Rules and Procedures, United States Court of Appeals for the Eighth Circuit, https://www.ca8.uscourts.gov/rules-procedures (last visited October 8, 2021).)
Other recent articles have highlighted the same concerns about how font choice affects readability. Choosing the right font, however, isn’t as straightforward as “sometimes we hear different things when we call something readable, [as] what pleases the DC circuit will disappoint the seventh. (See, Spencer Short, What the Judiciary’s Font Recommendations Can Teach Us, Law360 (August 30, 2021).)
Instead, writers should think of font choice more like a scatter plot, with readability on one axis and memorability on the other. Font placement on such a graphic is more of an art than a science. Experimentation and adaptability are crucial because “good brief writing requires a different approach, using different typefaces and different column widths and, above all, adopting different writing conventions”.
Font experimentation should go no further, however, as lawyers need to pay attention to the different font preferences of courts. (See, Jason Steed, “Font Considerations to Give Your Legal Briefs an Edge”, Law360 (May 11, 2021).)
Although the courts seem to prefer different fonts, five fonts in particular seem to be safe bets in most federal appeals courts – Century, Book Antiqua, Bookman, Equity and Palatino. Despite this, lawyers should always know the local rules and be aware of a court’s font preferences, as this can earn a few points.
So where are we? The best memoirs are those that are easy to read. And that means that not only the
clean, simple, well-organized prose, but the layout on one page is pleasing to the eye, not too cluttered, and pleasing to the eye. See, Magnuson, Eric J. & Bratvold, Diane, eds., Chapter 22: The Appealing Page in Art of Advocacy: Appeals 19, (Matthew Bender 2020) (ebook).)
You’re doing yourself and your clients a favor when you pay attention to what typography experts say and what the court tells you they want. After all, the purpose of reading your memoir should be to understand the gist of your arguments, and the reader shouldn’t be distracted – consciously or unconsciously – by ugly fonts or messy pages.
Sometimes the medium is a big part of the message.
Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. Rebecca Zadaka is a partner in the Minneapolis office of Robins Kaplan.