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.

TMI—TF: too much information—too fast

I’ll start this post with some axioms: If we’re in the persuasion business, then what we say is far less important than what our audience grasps. If the audience fails to grasp our point, then the persuasion process has failed. And if the audience wants to grasp our point but fails to do so, a possible cause is our failure to communicate our point in a way that the audience can grasp. Thus, if we want to succeed in persuading the audience, then we want to make sure that we’re presenting our case in a way that the audience can readily grasp.

If you’re with me up to here, then you need to know the stuff in Professor Andrew M. Carter’s article The Reader's Limited Capacity: A Working-Memory Theory for Legal Writers, 11 Legal Communication & Rhetoric: J. ALWD 31 (Fall 2014) (PDF download here). In his article, he makes several points that professional persuaders must know. The most important of these is the undeniable fact that humans’s capacity for processing information is limited. That limit applies not only to humans’ capacity to take in new information, but also to their capacity to tie that information to what they already know. Carter offers the metaphor of a juggler. If the juggler tries to juggle too many things at once, the juggler is likely to drop something. So it is when we ask our audience to juggle too many ideas at once: they’re liable to drop something. And what gets dropped will be the point we’re trying to communicate.

To avoid that result, Carter offers what he calls a “cognitive-load theory” of legal writing “to manage the reader’s working memory loads in order to maximize learning and reasoning.” He includes several tips for reducing the cognitive load we impose on our readers. The tips are important, but so is the science behind the tips. The article is only 20 pages long, so it’s well worth your time.

 

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).

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.

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.

Recommended reading on the science of persuasion

I recently came across an article by Prof. Kathryn M. Stanchi that I recommend to appellate lawyers and anyone else in the persuasion business: The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411, available on SSRN.

Stanchi starts her article by saying something that I’ve come to believe: that persuasive writers should “study the existing social-science data about human decisionmaking.” As she points out, trial lawyers have been doing that for years. But “appellate lawyers have been slow to follow theiir trial brethren in the pursuit of scientific data about what persuades people.” Instead, Stanchi says, “the study of persuasive writing has been dominated by a kind of ‘armchair psychology’—a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation.” These conventions and practices are handed down “without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decisionmaking.”

Let me add another observation, which goes to the good people who organize appellate CLE presentations. The conventional wisdom there is to recruit as many judges as possible as speakers to say what does and doesn’t work. That’s a good idea: there’s some wisdom in asking the fish which bait is most alluring. But even the best judges will be aware of only what they consciously perceive as being persuasive; they likely won’t be aware of what works subconsciously. For that data, we need to look to sciences such as cognitive psychology.

Stanchi’s article goes on to describe several strategies for constructing legal arguments and the data supporting their effectiveness. All of that material is worth reading. My wish is that readers take to heart what she says in her introduction and—maybe—change their way of thinking about persuasion itself and how to discover ways to be better persuaders.

Ethos and professionalism

Some lawyers see a tension between professionalism and zealous advocacy. I don’t. I think that the two go together, that we are most persuasive when we apply the highest standards of professionalism in our advocacy.

This truth becomes apparent when we consider ethos as a key to persuasion. In my October 25 post, I discussed ethos as a key to persuasion. Aristotle describes ethos as the audience’s perception of the speaker’s intelligence, high moral character, and benevolence. Those last two components—high moral character and benevolence—are what some of us have learned in our hours of professionalism CLE.

So how does an advocate show high moral character and benevolence? I can’t improve on the following quotable quotes, so I’ll just share them with you.

High moral character

Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 73 (4th ed. 1999):

If a discourse is to reflect a person’s moral character, it must display an abhorrence of unscrupulous tactics and specious reasoning, a respect for the commonly acknowledged virtues, and an adamant integrity.

Michael R. Smith, Advanced Legal Writing 125–26 (2d ed. 2008):

To gain the confidence of their audiences, legal writers must demonstrate that they are of good moral character or at least that they are not of questionable moral character. If a reader believes that a writer is not above lying, cheating, deceiving, or misleading, then the reader will view the writer’s arguments with skepticism and doubt. Conversely, if a reader believes that a writer possesses good character—or at least if the reader has no reason to question the writer’s character—then the reader will be more receptive to the writer’s arguments and assertions.

There are several traits or characteristics that legal writers should project through their writing to demonstrate that they are of good moral character. These traits include:

• Truthfulness
• Candor
• Zeal
• Respect
• Professionalism.

Benevolence

Corbett and Connors at 73:

If the discourse is to manifest a person’s good will, it must display a person’s sincere interest in the welfare of the audience and a readiness to sacrifice any self-aggrandizement that conflicts with the benefit of others.

Id. at 143:

Good will in the context of persuasion refers to how an advocate feels or is disposed toward others involved in the matter under discussion. According to classical rhetoricians, a decision-maker will doubt the veracity of what an advocate has to say if the advocate does not appear to be well-disposed toward the decision-maker or toward another party that may be affected by the decision. If a decision-maker receives the impression that an advocate is angry at, resentful of, or otherwise malevolent toward the decision-maker or an adverse party, the decision-maker will likely be skeptical about the advocate’s advice on the matter; the advocate might, after all, be speaking not out of logic or a sense of justice, but out of spite and anger…. The concept of good will is based largely on folk psychology and common sense: We tend to doubt a person’s word if that person has ill-will toward us or toward another person who will be affected by the course of action we are being persuaded to take.

Ethos: How to show intelligence

As we’ve seen in prior posts, an important mode of persuasion is ethos, the appeal based on the character of the speaker or writer. Ethos equates to trustworthiness. An advocates projects trustworthiness by showing intelligence, benevolence toward the audience, and high moral character. Today’s subject: how to show intelligence. For legal advocates, the answer is simple: do your homework.

If you made it through law school and passed the bar exam, you have all the innate intelligence you need. But simply having innate intelligence is not enough to project the ethos quality of intelligence. To project intelligence, the argument or brief  “must show that the speaker or writer has an adequate, if not a professionally erudite, grasp of the subject being talked about, that the speaker or writer knows and observes the principles of valid reasoning, is capable of viewing a situation in the proper perspective, has read widely, and has good taste and discriminating judgment.” Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 72–73 (4th ed. 1999). For the appellate advocate, the standard is not merely “adequate,” but “professionally erudite.” That means knowing the record and the applicable law backwards and forwards. In two words: read everything. It also requires being able to think logically, which requires a working knowledge of logic. For help with that, read Judge Ruggero Aldisert’s book Logic for Lawyers. Finally, the advocate must come across as a reasonable person, not a bomb thrower.

In his book Advanced Legal Writing, p. 148 (2d ed. 2008), Professor Michael Smith offers a list of 11 qualities that an intelligent legal writer is perceived to have:

1. Informed
2. Adept at legal research
3. Organized
4. Analytical
5. Deliberate
6. Empathetic toward the reader
7. Practical
8. Articulate
9. Eloquent
10. Detail oriented
11. Innovative

Smith’s book includes an entire chapter on ways a brief writer can demonstrate these qualities, with illustrative examples. I highly recommend it, along with the other books cited in this post. If you’re interested in buying any of these books, click on the book’s link in the right sidebar of this blog under the heading “Books for La. Appellate Lawyers.”

How to fake do ethos

The secret of success is sincerity. Once you can fake that you’ve got it made.
—attributed to Jean Giradoux

As we saw in my last post, the three components of an advocate’s ethos or trustworthiness are intelligence, honesty, and benevolence—or more accurately, the judge’s perception that the advocate is intelligent, honest, and benevolent. How does one create this impression? As observed by Corbett and Connors,

[a]n obvious answer, of the general sort, is that a person must truly possess these qualities. “No one gives what he does not have,” as the Latin maxim puts it.

They were kidding, just a little bit. They themselves also said that, according to Aristotle, it is the speech or writing itself that much create this impression. It follows that we all can create our own ethos by acting intelligently, honestly, and benevolently when we write a brief or give an oral argument. That’s how any virtue works: we act as if we have the virtue, and the habit of so acting makes us virtuous.

That’s the good news. The other news (I don’t want to call it “bad news”) is that displaying intelligence, honesty, and benevolence in a brief or oral argument takes a lot of work—especially the intelligence part. There are no shortcuts. Contrary to Jean Giradoux, you can’t fake ethos. But you can do ethos. How to do that will be the subject of the next few posts.

Sources:

• Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 72 (4th ed. 1999).
• Michael R. Smith, Advanced Legal Writing 125–26 (2d ed. 2008).

The importance of ethos

Let’s say you need to get your car repaired, and there are just four auto mechanics in town.

1. is honest and wants the customer to be happy, but isn’t very smart.
2. is smart and honest, but doesn’t care whether the customer is happy.
3. is smart and wants the customer to be happy, but has a reputation for being dishonest.
4. is smart, is honest, and wants the customer to be happy.

Did you pick D? Would you use D even if D charged a little more than A, B, and C? If so, you based your choice on the mechanic’s ethos.

In classical rhetoric, ethos is the third mode of persuasion, alongside logos (appeal to reason or logic) and pathos (appeal to emotion). Ethos is the appeal based on the character of the speaker or writer. The product of ethos is credibility. And credibility is crucial to persuasion.

Without credibility, you may possibly gain the judge’s attention, but you will never maintain it. Unless the judge’s attention is maintained, the judge will never be induced to accept your conclusion. And unless the judge is persuaded to accept the conclusion, the brief is not worth the paper (real or electronic) it is written on. Getting the judge to accept the conclusion is to appellate advocacy what the bottom line is to business.

Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal 18 (3d ed. 2017).

Ethos arises from three qualities: intelligence, benevolence, and high moral character. Intelligence means that the advocate knows what he or she is talking about: that the advocate is smart and has done the necessary homework. Benevolence means good will toward the decision-makers and others involved in the matter. High moral character means that the advocate displays truthfulness, candor, respect, and professionalism. Most important, it is the speech or the writing itself that must create these impressions.

Do these qualities, identified by Aristotle over 2,000 years ago, matter today? To answer that question, let’s return to our thought experiment with the four mechanics. Which one would you trust? Not A, because though A is a good person, A isn’t very good at figuring out the problem or the solution. Not B, because B doesn’t care about the customer’s needs. Not C, because by definition, a dishonest person can’t be trusted. But when you find a mechanic like D, you know you can trust that mechanic. You may even be willing to pay a little more for D’s services because you think the extra money is well spent.

As an advocate,  you want to be like mechanic D. You want the judges to perceive you as being trustworthy. If they don’t think you’re trustworthy, they won’t buy your argument.

How do you establish ethos or trustworthiness? One could write a book about that—in fact, Professor Michael Smith already has. His book, Advanced Legal Writing (2d ed. 2008), contains two chapters with 72 pages explaining ways that a brief can establish the writers’s intelligence, benevolence, and high moral character. In future posts, I’ll try to summarize some of Smith’s main points and other tips for establishing ethos. Meanwhile, here are the usual sources for this post and recommendations for further reading:

• Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 5 (2018).
• Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal 18 (3d ed. 2017).
• Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 19, 72–73, 77, 280 (4th ed. 1999).
• Michael R. Smith, Advanced Legal Writing 123–95 (2d ed. 2008).