December 8, 2021

Volume XI, Number 342

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Public Comment: Word Counts But Kindergarten Fonts

Ever since 1997 when the "new" Texas Rules of Appellate Procedure came into effect, long-winded lawyers in Texas have perfected all manner of chicanery to cram words into the page limits for Texas appellate briefs. 

Times they are 'a changin'. 

The Supreme Court's proposed new rules impose word limits on Texas appellate briefs and petitions. This is a much better way to control the amount of content in a brief without destroying its readability.

Page limitations just invite unreadable briefs. Lawyers will simply cram in more content by choosing a narrow font (like Times New Roman) and destroying white space by smearing in excessive footnotes and using the longest permissible line length. 

So word limits are good. But one proposed change in the court's rules actually impairs readability.

After the jump a plea to abandon 14 point fonts. Please consider this my public comment. 

Now don't get me wrong. I'm not one of those whipper snappers who mocks his elders and their presbyopia. I too must hunt for my reading glasses to read the paper. Those big letters on my iPad sure are legible. 

But legibility and readability are not the same thing.

Legibility is being able to recognize letters clearly in order to sound out word by word. That's why we use huge, clearly rendered fonts for children who are learning to read.

That's why we use large, sans-serif fonts for freeway signs

 

 (From Typography For Lawyers by Matthew Butterick) 

Freeway signs with few words and simple ideas do not perform their function if they are not rapidly legible from a long way off at a high rate of speed. 

 (From Typography For Lawyers by Matthew Butterick)

But briefs with 14,000 words need to be readable in addition to being legible. The eye needs to be able to move smoothly across the top shapes of the letters and get from line to line without fixation pauses.

A large body of scientific research indicates exactly what kind of type setting promotes readability and understanding. It is NOT double spaced 14 point font with one inch margins on a line of type that is 6.5 inches long.

That is just a choice left over from the age of the Smith Corona typewriter. No professional typographer would choose such a layout to create a readable, professionally typeset product. 

Go ahead. Go to Barnes & Noble or Amazon or any bookshop of your choice and attempt to find something written in 14 point double spaced fonts with a 6.5 inch line length. Download a book to your iPad. It will NOT be in 14 point double spaced font.

Readable text follows the typographer's golden ratio, starting with a font size of 9 to 11 point font and keeping the line length and line heights shorter and in proportion to the size of the font. In a former post, I re-configured a Texas opinion to use that kind of typography. 

If presbyopia or other vision problems make that illegible, fix the reader. Correct the vision. Adjust the magnification on the reader's iPad. Don't destroy the basic typography. 

That's how the Supreme Court of the United States does it. And they are not any younger or hipper than our judges in Texas. Quite the opposite. They are older and blinder. 

And yet they manage a pile of briefs with type quite small by the standards of the proposed rules. They don't use Supreme Court typography just to be unique or cool (even though it is ever so cool). The typography they use is the typography chosen by a professional print shop. 

Because it is readable. 

This is readable:

This Is Legible.

They are not the same thing. 

We don't have to go all the way to Supreme Court typography if that's too severe. Something like my Goldilocks Brief might be workable with its wider margins, 1.5 line spacing and extra white space between paragraphs.

It will also save the planet, one brief at a time.

Let's have readable briefs and readable slip opinions.  Please . . . no kindergarten fonts.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume II, Number 274
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

713-220-3981
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