Legal Ease

By Howard Posner
     
      Appearance Matters
      Years ago, when I was an Associate Without Prospects at Humpty & Dumpty, the senior partner asked me into his office, where he was holding a Very Important Motion I had drafted the previous week and hadn't seen since. He asked what the most important point in the motion was. I told him. He handed me the draft and asked, "Where is it in here?"
      Much to my astonishment, I couldn't find it, though I was sure I'd written it. After a craven retreat to my office, I soon realized that the answer to his question was, "It's at the top of the very first page, in all capitals, bold and underlined."
      At the time, I ascribed his inability to see it to his idiosyncratic way of reading, and I ascribed my own apparent blindness to astonishment at the question. But the passage of time has changed my view, to say nothing of my vision. A few years ago I didn't know what presbyopia meant, and now I'm its national poster child. I've come to believe that the best way to hide something from a busy middle-aged reader, such as a motion judge, is to stick it in front of his or her face in all caps, single-spaced, bold, and underlined.
      Yes, the topic of today's sermonette is "Appearance Matters." Perhaps you are turning up your nose at the whole subject, saying (as Truman Capote did of Jack Kerouac's On the Road), "That's not writing; that's typing," and are about to flip straight to the Discipline Report, hoping to encounter the name of that lunatic who put you through the deposition from hell. But you should hang around for two reasons. First, the appearance of a lawyer's document, like everything else in it, reflects the way the lawyer writes and thinks; appearance, style, and substance all bear on each other. Second, the lunatic hasn't been disbarred yet. I checked.
      The problem with blocks of uppercase letters is that the eye, like the ear, needs contrast to aid comprehension. Words written in letters of uniform height are the visual equivalent of words spoken without weak syllables. Listen to your computer vocalize text; after a while the drone ceases to register as language. (Similarly, opera singers, whose need to make themselves heard over orchestras prevents them from easing off the weak syllables, are harder to understand than Mick Jagger, despite their highly developed enunciation and his permanent sinus condition. Hence the public-television phenomenon of opera sung in English with English subtitles.)
      I've finally rid my own documents of all-capital captions, headnotes, and everything else. If I want bigger, I change the type size or the weight of the letters. I have far more choices than I can ever use. There's no need to limit yourself to the options available on a 1965 IBM Selectric typewriter, but it's strange how that machine's capabilities still define the look of many legal documents. Why isn't Courier type extinct? It's ugly and uses 30 to 40 percent more paper than Times, which actually looks bigger on the page.
      Even weirder is the practice, still common, of putting the names of PARTIES in all caps. Its only purpose, if it has a purpose, is to make it easy to scan the document and quickly spot all occurrences of SMITH or JONES, which is something readers don't often need to do. Having a PARTY'S NAME jump out like a jack-in-the-box makes it harder to typographically emphasize something else that you might really want to emphasize. As Alan Dworsky wrote in The Little Book on Legal Writing, "If God can get by with only one capital letter, so can your client."
      Emphasizing words with italic or bold type has its place, but overdoing it is self-defeating. If you emphasize too many things, you're not emphasizing anything-you're just shouting. If you've typographically highlighted lengthy sentences, or underlined words for emphasis in the middle of a passage that's already bold, consider toning it down. Read it aloud; you may find yourself bellowing like a television wrestler or pontificating like a right-wing commentator.
      Also consider whether bold type is a cheap substitute for editing. I see a lot of verbose, plodding sentences and paragraphs with the useful words emphasized; the reader would be better served if the writer had simply cut everything that wasn't highlighted.
      The document-appearance question I get asked most often is whether citations should go in footnotes. For years this topic has been debated with a relish that shows how badly many of us in the legal biz need to get a hobby, or a life. Sometimes I use footnotes for cites, sometimes I don't. It depends on the flow of the argument, the sort of citations I'm doing, what I had for lunch, whether other lawyers are involved in the brief, and what program I'm using (has anyone ever figured out how the footnote margins work in Word Perfect?). I use footnote citations understanding that they will score points with some judges and lose points with others.
      The advantage of footnote cites is clog reduction. They make it easy to put short quotes into sentences, or set out a series of supported facts, without interrupting the flow of the sentence. The disadvantage is that readers have to look down to see a citation, and if they're conditioned to read footnotes for content and can't resist looking, they'll start feeling like bobblehead dolls around page 12.
      If you're going to put your citations in footnotes, you must resolve not to put anything else down there, which may actually be the best reason to do it. If an argument or explanation belongs in a document, it belongs in the text. Putting it in footnotes is a way of avoiding a decision about where in the text it belongs. Reading a brief with discursive footnotes is like trying to talk simultaneously with one person on the phone and another in the same room with you.
      In a pending appeal, my first footnote said, "Footnotes in this brief will be used only for citations, and will contain no other remarks," then added, "other than this one." I figured it would inform, warn, and mildly amuse the reader; at any rate it amused me. My opposing counsel did exactly the same thing in the respondent's brief, to the point of copying the first footnote disclaimer verbatim. I don't know if imitation really is the sincerest form of flattery, but it's the most effective: My opinion of the guy's intelligence and professional acuity soared. Maybe the court of appeal will publish an opinion telling us what it thinks of the footnotes.
     
      Howard Posner (howardposner@comcast.net) practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.
     

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