Briefwriting tips

One space or two? Too much ado.

After my recent post about putting only one space (not two) between sentences, a friend pointed out a recent article in Attention, Perception & Psychophysics. According to the article, the authors (Rebecca L. Johnson, Becky Bui, and Lindsay L. Schmitt) did a study about this subject. Here’s the abstract:

The most recent edition of the American Psychological Association (APA) Manual states that two spaces should follow the punctuation at the end of a sentence. This is in contrast to the one-space requirement from previous editions. However, to date, there has been no empirical support for either convention. In the current study, participants performed (1) a typing task to assess spacing usage and (2) an eye-tracking experiment to assess the effect that punctuation spacing has on reading performance. Although comprehension was not affected by punctuation spacing, the eye movement record suggested that initial processing of the text was facilitated when periods were followed by two spaces, supporting the change made to the APA Manual. Individuals' typing usage also influenced these effects such that those who use two spaces following a period showed the greatest overall facilitation from reading with two spaces.

Unfortunately, to read the article itself, you have to shell out $39.95, which I wasn’t willing to do. (You can buy Matthew Butterick’s Typography for Lawyers for only $30.) Fortunately, I found this blog post in Lifehacker, where Nick Douglas did the homework.

Long story short: The font that Johnson et al. chose for their study was Courier New, a monospaced font that replicates a manual Underwood typewriter. The two-space convention is a vestige of the typewriter days, when everything was monospaced. This news just in: no one outside of prison writes a brief or any other court document on a manual typewriter using a monospaced font. For a few decades now, we’ve all had computers, and our documents have been written in proportionally spaced fonts. So as I said, “Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence.”

One more absolute rule for typography: No underlining. That will be the topic of a future post.


Only one space after sentences. Not two—not ever.

While on the subject of typography, here is an absolute rule, not subject to serious debate: Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence. On this point, the authorities are unanimous:

“Use even forward-spacing in your documents: one space between words and one space after punctuation marks (including colons and periods).” Bryan A. Garner, The Redbook § 4.12 (2013).

“Some topics in this book will offer you choices. Not this one. Always put exactly one space between sentences.” Matthew Butterick, Typography for Lawyers 41 (2010) (emphasis in original).

“A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.” The Chicago Manual of Style § 2.12 (15th ed. 2003).

Space between sentences. In typeset matter, one space, not two (in other words, a regular space), follows any mark of punctuation that ends a sentence, whether a period, a colon, a question mark, an exclamation point, or closing quotation marks.” Id., § 6.11.


Why I left-justify rather than full-justify

Many brief-writers use fully justified text, so that the text lines up with both the left and right margins. I don’t. When I make the typography decisions, I use left-justified or left-aligned text, with a “ragged-right” margin. This is not a matter of personal preference. It’s a matter of readability. If the text is generated by a word processor (e.g. Word, WordPerfect) rather than professionally typeset, left-justified text is easier to read because it avoids odd gaps between words. But don’t take my word for it. Consider these authorities:

“Except in the hands of a skillful typographer, fully justified text can be harder to read than unjustified (‘flush-left’) text. This is always true for office documents, and especially when they are unhyphenated as well. Forcing the text to both margins may result in lines with word spacing that is too wide or, worse, unevenly distributed across the page.... Setting the copy flush left has its own advantages, too: the uneven right margin gives visual clues that help the reader find the beginning of the next line. Readers don’t lose their place in the copy as often.” Bryan A. Garner, The Redbook 92–93 (3d ed. 2013).

“In my law practice, I almost never justify text. Why’s that? The justification engine in a word processor is rudimentary compared to a professional page-layout program. I find that word-processor justification can make text look clunky and coarse. Left-aligning the text is more reliable.” Matthew Butterick, Typography for Lawyers 136 (2010).

“For desktop publishing, then, the choice should be different. According to some experts, keeping the text left-aligned affords the greatest legibility because there is no adjustment needed to word spacing and because the resulting ‘ragged-right’ margin adds variety and interest to the page without interfering with legibility.” Ruth Ann Robbins, Painting With Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents:, 2 J. ALWD 109, 130 (Fall 2004).

“Do not justify your text unless you hyphenate it too. If you fully justify unhyphenated text, rivers result as the word processing or page layout program adds white space between the words so that the margins line up.” U.S. Ct. App. 7th Cir. Requirements and Suggestions for Typography in Briefs and Other Papers.


Be a writer

Twice a year, I speak about appellate practice at a CLE seminar for newly sworn-in lawyers. One thing I continually warn them against is using someone else’s brief or writ application as a model. There are two reasons for this advice: (1) The model may not follow current court rules. (2) Following form like this tends to preserve bad legal writing. Today I can cite Mark Herrmann as a supporting authority for this advice. In a recent blog post at Above the Law, Mark tells this story from his early career:

It took a while for me to develop a sense of comfort when I started working at a small firm in San Francisco. I didn’t know how the quality of my written work compared to the quality of the written work of other new associates at the joint. (In fact, in my first week at the firm, I made the mistake of using a brief filed a few months earlier as a model for a brief that I was working on. When the partner told me my work was nothing special, I showed him the model I’d worked from. He explained an important lesson: Your obligation is never to recreate what we did last time; your obligation is to do the best you can do.)  


Bad things can happen ...

... when you cheat on the court’s typographic rules to circumvent the page limit. In this article for the Journal of the Missouri Bar, Professor Douglas Abrams catalogs cases where lawyers have gotten caught doing this and the penalties imposed on them. The lessons:

  1. Obey the court’s rules governing typography.
  2. If your brief or memorandum is too long, edit it to make it shorter.
  3. If, after editing, it’s still too long, file a motion for leave to exceed the court’s page limit. The motion may or may not be granted, but no one will think of you as a cheater for doing so.

Advice from La. appellate judges: Try to stay in the circuit.

Here is one takeaway I got from last week’s LSBA Advanced Appellate Practice Seminar: The judges of the court of appeal prefer citation to their own courts’ cases over cases from other Louisiana circuits. So when citing a case for a legal proposition, try to find one from whichever circuit your brief is going to. Cite cases from other circuits only when you can’t find one just as good from within the circuit.

This isn’t surprising. In my observation, Louisiana’s appellate courts have been moving away from jurisprudence constante and toward stare decisis, meaning that they consider their own precedents as binding. I don’t have anything empirical to back this up; just my own observation of anecdotal stuff.


Plain language wins.

Does plain language in briefwriting translate into winning? It probably does. At least there is a correlation between use of plain language and winning. That’s the result of an empirical study of appellate briefs by Prof. John Campbell of the University of Denver Sturm College of Law. His conclusion:

We can’t prove from one study that style wins cases, but we can conclude that those who win cases most value writing style. Often, we spend a great deal of time on research, framing, and crafting argument. And we must do these things. But style matters too. Voiceless, passive, complex writing is a liability. Given that energetic, simple writing rules in the Supreme Court and even correlates with winning in the busy Ninth Circuit, we’d all do well to set aside some time to make our briefs read more like a Grisham novel and less like a statute. Judges and our clients will thank us.

To read an abstract of Prof. Campbell’s study and to download a PDF copy, follow this link.

Source: Campbell, John E., Writing that Wins: An Empirical Study of Appellate Briefs (July 31, 2017). The Colorado Lawyer, Vol. 46, No. 3, March 2017; U Denver Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3011605.


Reminder of new briefing requirement in the 2nd Circuit

The current issue of the Louisiana Bar Journal includes a short but worthwhile article for anyone practicing in the Louisiana Second Circuit. Under new Local Rule 15, all appeal briefs must include the following certification:

I hereby verify that all attachments to this brief have previously been duly filed and/or accepted into evidence in the lower court, to the best of my knowledge, information and belief. I understand that failure to comply with this local rule may result in the refusal to consider said attachments. WILLFUL FAILURE TO COMPLY WITH THIS LOCAL RULE MAY SUBJECT ME TO PUNISHMENT FOR CONTEMPT OF COURT

Failure to comply with this rule will result in rejection of your brief. See Local Rule 2-5Hal Odom, Jr., Focus on Local Practice: New Certification Required in 2nd Circuit, 65 La. B.J. 100 (Aug./Sept. 2017).

Of course, if you’re a regular reader of this blog, you already knew about this new rule. Still, Hal’s article is a good reminder.


Footnote not enough to preserve an issue

Some questions have easy answers, such as this one:

Q.    Can I preserve an issue for review by the Louisiana Supreme Court by reserving my right to do so in a footnote in my writ application?

A.    No. You need to address the issue in your assignments of error and your argument. Relegating it to a footnote won’t do. See Bonnette v. Conoco, Inc., 2001-2767, p. 10 (La. 1/28/03), 837 So. 1219, 1227.