Legal Commentary

Why court rules regarding typeface and line spacing should be updated

By Ernie Svenson

Yesterday I talked about how people are like monkeys because they have trouble adapting behavior to new conditions. And we were talking about typography.

So let's continue in that vein.

As we discussed, courts have local rules that do not enhance "readability" of documents. Instead of making it easier for documents to be read, the typical court rules make documents harder to read.Why is that?

Someone at the court is presumably responsible for updating local rules, and periodically evaluating if they still make sense. No, not really.  More likely it's a committee, which is an automatic death knell for change.

No committee is going to read Butterick's Typography for Lawyers and collectively accept that the current rules related to font size and spacing etc. no longer make sense. Admitting that would require one to enter debate about how the rules regarding typeface and line spacing should be changed. And that ain't happening in any committee.

A committee of lawyers will not commit to learning the rudiments of typography, even if they sense that it might be helpful to their objective. Committees follow immutable rules of physics. Rule #1: They'll avoid realms that they lack expertise in. So they'll avoid making any change that would improve document readability in crafting local rules about document formatting.

So what is the purpose of rules regarding document formatting?

After reading Butterick's book I spent some time looking at the rules for my local federal trial court and the rules for the U.S. Fifth Circuit Court of Appeals. I was quickly struck the local rules for the Eastern District of Lousiana. For example, Rule 10 requires that the first page of a pleading have the top margin set to 2.5" and the bottom margin set to 1.5".  That seems like a lot of white space, right? Below is an example what that rule would produce:

Why would so much white space have been necessary? 

The answer is easily deduced if you think about what the clerk's office used to do when you filed a document. They would stamp it at the top and bottom with two markings (I believe they were called "wigglers" or something like that). Below is an example from an old pleading.

Now that we have electronic filing via the CM/ECF system neither of those marking appear. Instead a simple line across the top is stamped (automatically by a computer) when a document is electronically filed. See example below.

So now we have all of this extra white space at the top and bottom, which does not serve the purpose for which the rule was originally created. It's time to make a change, but will that happen?

I don't doubt that the court will eliminate the rule about the extra space on the caption page, but I do doubt that it will consider changing the font requirements to allow smaller font and smaller line spacing. Courts worry about lawyers who might take advantage of more liberal rules about typeface.

If were in charge of the court I'd liberalize the rules to allow 11 point type in the body and 10 point type in footnotes. I'd specify that indented block quotes can be 11.5 pt type and single spaced. I'd allow the main body text to be as close as 1.5 pts. And I'd impose a word count on the document along with a page count and say that the page limit cannot be exceeded under any circumstance (since page count is easy to verify). If the new fontsize and line spacing would allow more text then I'd lower the page count.

In other words I'd try to make court documents more readable. Sort of like this:

And I'd supply the attorneys with a Word and Word Perfect template that contains the settings and styles necessary to easily create the document in a style that the court is looking for (i.e. something that looks professional and is easy to read).

Tune in tomorrow and I'll show you what I mean.

Full post as published by Ernie the Attorney on January 06, 2011 (boomark / email).