Appellate Briefs – Appearance Matters

This post and the next two cover the appellate brief’s appearance and format. Printers and graphic designers know this better as “typography,” meaning the style, layout, and appearance of the printed word. Well known features include ALL CAPS, bold, italics, and underlines.

Why does this matter? In her and her co-author’s treatise, Chief Justice Toal of the South Carolina Supreme Court explains that poor appearance may detract from the content. Toal, Vafai, and Muckenfuss, Appellate Practice in South Carolina (2d ed. 2002) at 231.

Other judges agree. Justice Antonin Scalia and Bryan A. Gardner, Editor of Black’s Law Dictionary, bluntly say, “Don’t spoil your product with poor typography.” They cite an author who has seen law firms spend hundreds of thousands of dollars on technology only to produce documents that look like they were typed on a 1940s Underwood. Scalia and Gardner, Making Your Case – The Art of Persuading Judges (2008) at 136.

The federal Seventh Circuit agrees that it is worth while to invest some time in improving the quality of the brief’s appearance and legibility. It notes that appearance will not make your argument better, but will ensure that the judges grasp and retain your points with less struggle. “That’s a valuable advantage, which you should seize,” the Court states. Seventh Circuit Guidelines on Typography.

This is also not just a matter of taste any more than correct spelling or proper grammar is. In an oft-cited article, Ruth Anne Robbins explains the psychological and educational science behind how graphic design principles affect a reader’s comprehension and retention. The science shows that legibility and organization matter. Robbins, Painting With Print, 2 J. Ass’n Legal Writing Directors 108, 113-125 (2004).

Lastly, Matthew Butterick, an attorney and Harvard-trained graphic designer and typographer, has written Typography for Lawyers. His website puts the issue colorfully by likening poor typography to showing up for oral argument in jeans and sneakers. You use good typography, he contends, for the same reason you wear proper court attire to oral argument — you want to persuade and not just be heard.

I became interested in this when I confronted a brief that looked like a ransom note. In another case, the brief’s record references were placed in bulleted, double-indented, and single-spaced text that continued for pages and pages. I stopped reading several times before struggling through it. The experience was painful.

Has anyone else had similar experiences? If so, please reach me here.


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