Louisiana Civil Appeals

Yes, font choice is important

Does font choice matter in writing an appellate brief? YES! If you don’t believe that, read the U.S. Seventh Circuit’s recent decision in AsymaDesign, LLC v. CBL & Associates Management, Inc., No. 23-2495 (7th Cir. June 3, 2024), starting with the last paragraph on page 4.¹ There, Judge Easterbrook urges lawyers to follow the Seventh Circuit’s advice on typography for briefs, (found here and here). Why?

Judges are long-term consumers of lengthy texts. To present an argument to such people, counsel must make the words easy to read and remember. The fonts recommended in our Handbook and Typography for Lawyers promote the goals of reading, understanding, and remembering. Display faces such as Bodoni or Bernhard Modern wear out judicial eyes after just a few pages and make understanding harder.
[Id. at 6–7.]

What prompted Judge Easterbrook’s sermonette on fonts? The appellant’s counsel in AsymaDesign filed a brief written in Bernhard Modern., “a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show.” Id. at 5. That font has a low x height (the ratio of a lower-case x to the capital letters), elongated ascenders, and short descenders, “not characteristics that conduce to easy reading of long passages.” Id. at 5. To drive home his point, Judge Easterbrook put two paragraphs of his opinion in 16-point Bernhard Modern, to contrast it with the 12-point Palatino Linotype used elsewhere in his opinion. See id. at 6. 

What, then, should lawyers use instead of something like Bernhard Modern? Simple: “Use the most legible face available to you. Experiment with several, then choose the one you find easiest to read.” Id. at 5. There are at least two objective criteria for deciding which font is more legible than another:

• Look for a font with a taller x-height, i.e., where a lower-case x is taller in relation to a capital letter. According to the Seventh Circuit, x height makes “the Bookman and Century families ... preferable to faces in the Garamond and Times families.”
• Looks for a font with good contrast. To my extremely myopic eyes, Cambria has good contrast; Garamond doesn’t.

For further guidance, take a look at Matthew Butterick’s assessment of system fonts. They’re not his first choice—he prefers professional fonts such as his own Equity, used by the U.S. Fifth Circuit. But if you’re stuck with system fonts, then following Butterick’s suggestions will likely make your brief easier to read than your opponent’s.

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Hat tip to my colleague Aaron G. McLeod, a proud user of Equity.

“Bridging the Gap” bonus materials

This morning, I’m giving a CLE presentation on appellate practice at the Louisiana State Bar Association’s Bridging the Gap seminar. For attendees and anyone else who’s interested, here are links to a couple of articles I came across recently that make for good reading. The authors’ names are links to their bios, and the article titles are links to the articles themselves.

• Douglas S. Lavine, Advocacy from the Human Perspective: Advice for Young Appellate Lawyers, 15 J. App. Prac. & Process 243 (Fall 2014).
• Andrey Spektor and Michael A. Zuckerman, Legal Writing as Good Writing: Tips from the Trenches, 14 J. App. Prac. & Process 267 (Fall 2013).

Choosing names

You’ve probably heard that what you call the parties or other people involved in a case can have subtle persuasive effect. You’re probably aware of and may try to follow Fed. R. App. P. 28(d), which recommends not using terms like appellant and appellee, and instead using either actual names or descriptive terms like “the employee,” “the injured person,” “the taxpayer,” “the ship,” or “the stevedore.” But Rule 28(d) still leaves us with several choices. For instance, if American Airlines is a party, you might refer to that party by its full name, by the shorthand American, or by a description which will vary depending on the type of case, such as the airline, the employer, or the taxpayer. How do you choose? And should your choice be different depending on whether American Airlines is the client or the opposing party?

For help in making these decisions, check out What's in a Name? The Implications of Strategic Naming Choices in Legal Advocacy, by Professor Kristin Gerdy Kyle of BYU Law. In her article, Professor Kyle explores the field of psycholinguistics and applies theories from that field to the choices of what to call the people and entities involved in a case.

To go straight to Professor Kyle’s recommendations based on her examination of the science, you can jump ahead to page 48. But if you want to know a little about the science behind her recommendations, read the whole thing. Following experts’ rules is fine, but it’s always better to know the reasons behind their rules so you’ll know when to make an exception.

I have one suggestion of my own: in attempting to depersonalize an opponent, don’t be obvious. If you call your client Mary Smith and your opponent the defendant, every reader will know what trick you’re trying to pull, and a trick doesn’t work when the audience is on to it. In The Winning Brief, Bryan Garner recommends “us[ing] real names for both parties and let[ting] your arguments do the talking.” That strategy is more effective because, as Garner says, “bad facts don’t stick to neutral labels ... the way they do to real names.” Bryan A. Garner, The Winning Brief 244 (3d ed. 2014).

The Indigo Book: A Free Citation Manual

Would you like a citation manual that—unlike The Bluebook—is designed for practitioners, is easy to use, and costs nothing? If so, then check out The Indigo Book. It comes in your choice of HTML and PDF formats. The latter is handy if you want to browse the pages. (Note: It’s 284 pages long, so if you print a hard copy, print on both sides of the page.)

Besides giving good guidance for citations, it’s peppered with helpful comments, called “Indigo Inklings.” My favorite so far is the one that tells you how to type “§” (Alt-0167 in Windows; Option-6 on an Apple keyboard).

Of course, if you’re citing a Louisiana case decided after 1993 to a Louisiana court, follow § 8 of the LASC’s General Administrative Rules.

How not to evade the word-count limit

Sometimes brief-writers find themselves tempted to squeeze under the page limit or word-count limit by referring to and incorporating by reference an argument in another brief. If you’re ever tempted to do that, here’s my suggestion: Don’t. Otherwise, you may find yourself on the receiving end of an order like this one in Promptu Systems Corp. v. Comcast Cable Communications, LLC, No. 2022-1093 (Fed. Cir. Feb. 16, 2024). The lawyer there tried to get under the word-count limit by incorporating by reference a 2,000-word argument from another brief. The court didn’t appreciate that; nor did it appreciate the lawyer’s argument that he was just trying to “streamline the briefing”: “Requiring the Court to crossreference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count.”

If you think you’ll have trouble meeting the page limit or word-count limit, file a motion to enlarge the limit. That motion will likely get a better reception than any attempt to evade the limit. And if you’re filing in a Louisiana court of appeal, be mindful of Uniform Rule 2-12.2(C)(3).

The first two commandments of brief writing

Here’s something I’ve wanted to get off my chest for a long time. It springs from the seemingly endless debates lawyers have about matters of style in writing a brief: Citations in text or in footnotes? How many spaces—1 or 2—after the end of a sentence? What font to use? And so on.

We often answer these questions according to what we like or what we think judges like. In my opinion, that’s the wrong approach to answering these questions. Instead, in making these choices, we should ask ourselves one question: Which choice will be most persuasive?

This approach stems from something we all should agree on: that the brief’s most important purpose is to persuade the judges deciding the case. Judge Ruggero Aldisert made this point well in Winning on Appeal:

Briefs are written for one audience and one audience only: judges and their law clerks.... You write to persuade a court, not to impress a client. You write to persuade a court to your point of view; at a minimum, you write to convince the court to grant oral argument in your case. The key word is “persuasion.” If a brief does not persuade, it fails....

Persuasion is the only test that counts. Literary style, massive displays of scholarship, citations that thunder from the ages, and catchy phrases are uniformly pointless if the writing does not persuade.

[Ruggero J. Aldissert et al., Winning on Appeal 15 (3d ed. 2017).]

Because the brief’s most important purpose is to persuade, the most important consideration in every choice we make as brief writers is this: Which choice will make the brief more persuasive? As Bryan Garner has said, “All aspects of a brief—its basic ideas, its tone, its sentence structure, its word choice, its punctuation, its page layout—matter.” The Winning Brief xiii (3d ed. 2014). All aspects matter for persuasiveness.

Let me give you an example: choice of font. My go-to font is Cambria, which I use whenever the rules allow me to choose the font. Why? Not because I think it looks nice (though I do), but because it has high contrast—the letters stand out from the white background better than in other fonts. Studies in cognitive psychology show that high-contrast text is (no surprise) easier to read, which encourages readers to use System 1 thinking, which makes them more receptive to whatever message the writing conveys. So I choose Cambria not because I find it aesthetically pleasing, but because I have reason to think that it will enhance the persuasiveness of my brief.

How do you know what’s more persuasive? Learning that is a career-long pursuit. I recommend the books listed on the right side of this blog’s home page. Bryan Garner’s books are a good place to start. For an intro to cognitive psychology, check out Daniel Kahneman’s Thinking, Fast and Slow. For lessons in classical rhetoric, check out Classical Rhetoric for the Modern Student by Edward Corbett and Robert Connors and Legal Persuasion by Linda Berger and Kathryn Stanchi. For advice on applying this knowledge to brief writing, I recommend Michael Smith’s Advanced Legal Writing.

So here are the first two commandments of brief writing:

1. Persuasiveness matters more than anything else.
2. The most important consideration for every choice you make as a brief writer is which choice will be most persuasive.

How to abbreviate LSU

With the Labor Day weekend almost here, I offer a labor-saving hint for Louisiana practitioners. Let’s say you want to a case with this title:

Arthur Tolis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College¹

A slave to the Bluebook might abbreviate the case name like this:

Tolis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.

I’ve actually seen Louisiana lawyers cite Tolis like this. Don’t do that. If you must follow the Bluebook, then heed Rule 6.1 (17th ed.). According to that rule, when an entity is known by its initials rather than its full name, you may substitute those initials for the party’s complete name. Certainly in Louisiana, LSU is a well-known set of initials for the Louisiana State University and Agricultural and Mechanical College. So you can comply with the Bluebook by citing Tolis this way:

Tolis v. Bd. of Supervisors of LSU

If you follow the ALWD Guide to Legal Citation instead of the Bluebook (good for you!), then you get to the same place under ALWD Rule 12.2(e)(3) (5th ed.).

So the next time you want to cite a case with LSU’s full name in the caption, save yourself some labor and abbreviate it LSU. Everyone will know which entity you’re referring to.

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¹ 95-1529 (La. 10/16/95), 660 So.2d 1206.

Duty to cite adverse binding authorities

“We briefly adress the arguments presented in the petition, as well as the ethical concerns posed by counsel’s behavior in this litigation.” That’s how the Fifth Circuit ended its opening paragraph in Johnson v. Lumpkin, No. 22-70005 (5th Cir. Aug. 11, 2023),  The lesson: ignoring adverse binding authorities will not help you win. It’s more likely to make a bad situation worse.

In Johnson, a petitioner for habeas corpus raised arguments that were foreclosed by several decisions of the U.S. Supreme Court and U.S. Fifth Circuit. One of those binding Fifth Circuit decisions involved the same lawyers making the same arguments: Buntion v. Lumpkin, 982 F.3d 945 (5th Cir. 2020). According to the panel’s original opinion, the district court denied habeas and ordered the petitioner’s counsel to show cause why they should not be sanctions under Rule 11 “for making arguments that have been ‘consistently rejected by the Fifth Circuit for decades.’” Counsel responded by moving to recuse the district judge. As you’d expect, the district judge denied that motion. Johnson then petitioned the Fifth Circuit for a certificate of appealability on the denial of habeas and appealed denial of his recusal motion. A panel of the Fifth Circuit denied the certificate and affirmed the denial of recusal. Johnson v. Lumpkin, No. 22-70005 (5th Cir. July 18, 2023).

Unfazed, Johnson applied for rehearing en banc. That effort did not succeed in obtaining rehearing; instead it drew another panel opinion chastizing counsel for ignoring multiple adverse binding authorities. It didn’t help that the same lawyers had done the same thing three years ago in Buntion. The panel pointed out that, while it’s okay to seek overruling of binding authority, it’s not okay to ignore it:

To be sure, ethical rules and rules of civil procedure allow counsel to advocate for a modification in the law. But when doing so, counsel is unquestionably obligated to recognize contrary authority. See Mod. R. Prof. Cond. 3.3(a)(2) (“A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”); Tex. Disciplinary R. Prof. Cond. 3.03(a)(2) (same).

Johnson’s attorneys failed to do so. Both before the district court and on appeal, counsel failed to cite any of the binding precedents listed above. Nor could they reasonable argue that there were not aware of these precedents. Indeed, the same lawyers raised the exact same arguments just three years ago in Buntion v. Lumpkin. The district court was well within its discretion to consider whether counsel’s lack of candor warranted sanctions. 

Nor was the panel impressed—at least not in the right way—by Johnson’s petition for en banc rehearing, which the panel found to misstate its original opinion:

Especially given that counsel are already testing the limits of their duties of good faith and candor, we would have expected them to show better judgment in discerning whether to file a petition for rehearing en banc—especially one that badly misstates the opinion’s conclusion. A good-faith reading of the court’s opinion clearly shows that it does not hold what counsel says it holds. Petitions for rehearing en banc are an “extraordinary procedure” that should be used only to bring the court’s attention to an issue of “exceptional public importance” or one that “directly conflicts” with onpoint Supreme Court or prior Fifth Circuit precedent. 5th Cir. R. 35 I.O.P. Given the deficiencies discussed above, Johnson’s petition does not rise to that level. Counsel are strongly encouraged to confine future arguments to the limits imposed by applicable ethical rules.

The lesson here isn’t new. You can argue in good faith that binding precedents should be overruled. But to do that, you first must confront those binding precedents head-on. Ignoring them is a way to lose both the case and your credibility.

La. 3 Cir. Citation Manual

Did you know that the Louisiana Third Circuit has its own citation manual? I happened to come across it today on the court’s web site. If you practice in the third circuit, I suggest downloading a copy and getting familiar with it. Among the rules that caught my eye are these:

• No space after “So.” and “2d” or “3d.” (Rule 1.3.)
• No space between “La.” and “App.” (Rule 1.4.)
• For Louisiana Supreme Court decisions before 1994, no space between “La.” and the year of the decision. (Rule 1.5.)
• In a case’s subsequent history, include writ denials and certiorari denials unless the denial is due to untimeliness. (Rule 1.15.)
• For U.S. Supreme Court cases, omit the parallel citation to the Lawyer’s Edition. (Rule 1.16.)
• For Louisiana statutory abbreviations, omits spaces after internal periods, but put a space before “art.” (Rule 2.1.) Thus:
  • La.Civ.Code art. 2315
  • La.Code Civ.P. art. 1914
  • La.Code Crim.P. art. 413
  • La.Ch.Code art. 1131
  • La.Code Evid. art. 601
• For the Revised Statutes, ignore the Bluebook and omit the section symbol. Thus, “La.R.S. 23:1201(F)(1).” (Rule 2.2.)
• Know the difference between a hyphen, an en-dash, and an em-dash. For proper usage of these punctuation marks, consult Bryan Garner’s Redbook (not to be confused with the Redbook magazine). (Rule 3.5.)

To download a cop of the citation manual, follow this link.

Don’t use Garamond

This post is both a tip and a plea: if you get to choose the font for whatever you’re writing, please do not choose Garamond. Of all the Microsoft system fonts one might use in legal writing, Garamond has to be the hardest to read, making it worse than the much-maligned Times New Roman.

What makes Garamond hard to read is its poor contrast—I have to squint to read it. And the harder something is to read, the more likely the reader is to doubt both the messenger and the message. That is true whether the cause of the difficulty is word selection, sentence and paragraph composition, or a hard-to-read font. If you doubt that, read this short article, especially page 185 and the studies cited in the article. That is why font selection is so important to persuasive writing.

In choosing a font, don’t choose the one with the prettiest letters. The thing to look for is contrast: how well do the black letters stand out on a white page. Good contrast is what makes a font easy to read. Poor contrast does the opposite. And the easier something is to read, the more likely the reader is to find both the messenger and the message credible.

I like Cambria because it has good contrast compared with other system fonts. To illustrate my point, I made a short PDF document comparing Cambria with Garamond. To have a look, follow this link. Note the difference in contrast between the two fonts. If you can find a font with better contrast than Cambria, use it.