Michigan Bar Journal October 2018 48 Plain Language

Review of Matthew Butterick’s Typography for Lawyers (Part 1)

By Matthew R. Salzwedel

Editor’s Note: This article is split into Everyone who works in the law—judges, after a sentence-ending period helps read- two parts. The first part appears below, lawyers, paralegals, and legal assistants— ers better comprehend what they’re read- and the second part will appear in next can benefit from reading it. ing.7 But both the study’s methodology and month’s issue. Butterick’s most useful and easy-to-adopt its broad conclusion are flimsy at best.8 typography recommendations follow. This The 60 participants were college stu- tellar legal writing requires is Typography 101—basic typography con- dents (hardly representative of the popula- planning, organization, clear ventions, along with step-by-step instruc- tion); the study used text set in prose, and impeccable gram- tions for changing settings in New , which is rarely used today; using S mar and punctuation. But an- Word 2016. (If you have a Mac, the book two spaces after a period increased partici- other key part of excellent legal writing gets includes Mac-specific instructions, or you pants’ reading speed (by a tiny 3 percent) little or no attention from all but the most can find them online.) On a few topics I’ll only if they already used two spaces in their meticulous legal writers—typography. Be- digress to give my own preferences formed writing; and the researchers didn’t find that fore your eyes glaze over, grant me a few during my practice as both a litigator and a two spaces helped the participants under- more sentences to explain why you should corporate lawyer with a heavy contract- stand the text any better than if one space care about it. drafting practice. followed the period.9 Typography is writing’s visual element First, though, an important disclaimer is After recounting even more problems that, if done correctly, can help your read- in order: Butterick’s recommendations still with the study, Butterick accurately describes ers enjoy and better understand your work. require that you use your judgment. If a law, the attention and weight that you should If you write well but neglect the basic con- court rule, or stubborn senior partner says give to it: “Not much to see here, I’m afraid.”10 ventions of professional typography, you to do something differently, then of course deserve the same scorn from your readers follow that direction. Don’t underline as the fancy-restaurant chef who serves lob- Although contract drafters rarely under- ster tails on plastic fast-food trays and fine Put one space after a line words other than section headings, some French wine in paper Dixie® cups. In short, punctuation mark brief-writers choose to underline case names your credibility as a writer is at stake. and words that they want to emphasize. Fortunately, if you know nothing about If my Twitter feed is any indication, law- Other brief-writers—especially if they fol- professional typography, you don’t have to yers remain bitterly divided over whether low The Bluebook and other well-accepted spend your free time learning it from scratch to insert one or two spaces after a sentence- style guides—italicize these words.11 because Matthew Butterick—a Harvard- ending period. Butterick says that you have Butterick points out that typewriters trained typographer who doubles as a Cali- no choice: it’s always one space after a punc- forced lawyers to underline case names fornia lawyer—has written the book on tuation mark, including after a sentence- and words that they wanted to emphasize how professional typography can improve ending period.2 because typewriters couldn’t bold or itali- legal writing. Now in its second edition, He cites professional-typography author- cize words.12 Now that lawyers don’t use Butterick’s Typography for Lawyers1 runs ities as well as The Chicago Manual of Style,3 typewriters, there’s no need to underline. about 230 pages and is a quick, easy read. The Redbook: A Manual on Legal Style,4 and Underlining is ugly. If you want to empha- the United States Court of Appeals for the size text, either italicize the words or put Seventh Circuit’s Requirements and Sugges- them in bold. tions for Typography in Briefs and Other “Plain Language,” edited by Joseph Kimble, Papers.5 Butterick explains that the two- has been a regular feature of the Michigan space convention is a holdover from the Don’t use monospaced Bar Journal for 34 years. To contribute an typewriter and that, whatever writers or Courier New and Sans Type- article, contact Prof. Kimble at WMU–Cooley publishers may have done in the past, pro- writer are monospaced fonts—each char- Law School, 300 S. Capitol Ave., Lansing, MI fessionals now use only one space.6 acter is the same width. 48933, or at [email protected]. For an in- But doesn’t new research support the and Century Schoolbook are proportion- dex of past columns, Google “Plain Language two-space convention? Actually, no. A recent ally spaced fonts—each character has a column index.” study in the journal Attention, Perception, different width. Monospaced fonts are an- & Psychophysics did claim that two spaces other vestige of the typewriter era: they October 2018 Michigan Bar Journal Plain Language 49

served only the purpose of satisfying the and separation agreements. (Butterick par- 8. Chen, Please don’t use this study to justify your mechanical needs of typewriters—not “to tially blesses UI, saying that it’s “OK horrible habit of using two spaces after periods, The Verge (April 30, 2018) and Haelle, might require monospaced fonts.14 But be- will read the document—I default to Times One or Two Spaces After a Period? That New sides the Massachusetts appellate courts— New Roman, the font least prone to cause Study Can’t Tell You, Forbes (May 9, 2018) (“[T]he study is so poorly require them. Even so, if you use Courier but I don’t fuss if a vendor’s contract uses done that it should not have passed peer review.”). New or another and want or another minimally readable font. 9. Id. to switch to a proportionally spaced font, Ken Adams uses in his contracts25 10. Butterick, Are Two Spaces Better Than One? A Response to New Research, Butterick’s Practical first check the rules. (while declaring Segoe UI to be “unobjec- Typography, 2nd ed (April 30, 2018) . Retire Arial and try something 11. Typography for Lawyers at 75 (noting that The ommendations. But don’t even think about other than Times New Roman Bluebook doesn’t mandate underlining except for using Arial Narrow (8.5 pt) or other small, hard- law-review text and permits practicing lawyers to Butterick doesn’t recommend Arial to to-read fonts. Tiny, hardly readable fonts tell substitute italics where underscoring is used). 12. Typography for Lawyers at 74 –75. lawyers choosing a proportionally spaced your readers two things: (1) you don’t care about making their day hell, and (2) they 13. Id. a t 7 7. font. Its use, he says, “is permanently asso- 14. Id. ciated with the work of people who will need to pay close attention to what’s in the 15. Mass R App P 20(a)(2) (“The shall be a never care about typography.”16 Instead of contract because you’re possibly trying to monospaced font (such as pica type produced by a 27 typewriter or a Courier font produced by a computer Arial, Butterick recommends the similar- bury something important. n word processor) of 12 point or larger size and not looking professional fonts Neutral, Bernini exceeding 10.5 characters per inch.”). See also Sans, and Cooper Hewitt (a free, open-source The provenance for this article is 10 Ruch, Modern vs the Massachusetts court font designed for the Smithsonian).17 Takeaways from Typography for Lawyers, , Boston Globe (November 2, 2014) . ularity, he says, is the result of its ubiquity, updated on October 10, 2015. 16. Typography for Lawyers at 80. not its quality. It isn’t really a font choice 17. Id. a t 116 . but rather is “the absence of a font choice, 18. Id. a t 119. Matthew R. Salzwedel is a former litigator and now 19. Id. a t 118. like the blackness of deep space is not a is senior counsel at HomeServices of America, Inc., in 20. Butterick, System Fonts, Choose Wisely, Butterick’s color. To look at Times New Roman is to Practical Typography, 2nd ed . substitutes, he recommends the professional and you can follow him on Twitter @legalwritinged. 21. Typography for Lawyers a t 113. 22. System Fonts, Choose Wisely (stating that system fonts fonts Equity (a font that he created), Tiempos, are “suitable for sharing draft documents”). 19 and Verdigris. ENDNOTES 23. Wikipedia, Segoe . But there’s a rub with professional fonts. 1. Butterick, Typography for Lawyers: Essential Tools for 24. Typography for Lawyers at 79. As Butterick acknowledges,20 Microsoft Polished & Persuasive Documents (Thomson Reuters, 25. Adams, A Manual of Style for Contract Drafting (ABA, 2d ed 2018). Word doesn’t include them as free system 4th ed 2018), § 16.8 and Adams, Typography: 2. fonts; instead, you must buy a third-party Id. at 41–4 4. Revisiting My Choice of Calibri, Adams on Contract license to use them. A single license for 3. The Chicago Manual of Style (Univ of Chicago Press, Drafting (April 21, 2010) . 4. Garner, The Redbook: A Manual on Legal Style 26. 21 Adams, Are You Familiar with Segoe UI?, Adams on $200. And if you want several people in (West Academic Publishing, 4th ed 2018), § 4.12. Contract Drafting (May 31, 2017) . a professional font, you’ll need to buy ei- Suggestions for Typography in Briefs and Other Papers 2 7. Typography for Lawyers at 88 (“Fine print is ther several individual licenses or a bulk at 5 synonymous with evasion and deception.”). (“Put only one space after punctuation. The typewriter license. Professional fonts also don’t dis- convention of two spaces is for monospaced type play properly to people who haven’t bought only. When used with proportionally spaced type, the license.22 extra spaces lead to what typographers call ‘rivers’— Regardless of your choice, you should wide, meandering areas of white space up and down a page. Rivers interfere with the eyes’ movement from The Contest always ask yourself what font will be the one word to the next.”). All websites cited in this article easiest for your readers to read and help were accessed on September 14, 2018. There’s still time to try your hand at the them understand what you’re trying to 6. Typography for Lawyers at 41–42. latest contest. The deadline is Novem- convey. After experimenting with different 7. Johnson, Bui & Schmitt, Are two spaces better than ber 19. You’ll find it in the September Word system fonts, I now use Segoe UI23— one? The effect of spacing following periods and column. Just Google “Plain Language commas during reading, 80 Atten Percept Psychophys a proportionally spaced font—for employee- 6, 1504 (2018) . Michigan Bar Journal November 2018 52 Plain Language

Review of Matthew Butterick’s Typography for Lawyers (Part 2)

By Matthew R. Salzwedel Editor’s Note: This is the second part of a part of the contract is in all caps. Why, pray Don’t put ordinal-number two-part article. The first part appeared in tell, do lawyers persist in using so much contractions in superscript last month’s issue. all-caps text? “It’s the way we’ve always An ordinal defines a thing’s position in done it.” “Statute A in State X requires it, so a series—for example, “first,” “second,” or it’s best to be extra careful.” These objec- Use ALL CAPS sparingly, if at all “third.” Word’s default setting automatically tions are mostly rationalizations, not justifi- changes ordinal-number contractions such You’ll find more all-caps text in contracts cations, for inertia or personal preference. as “3rd,” “13th,” and “22nd” to superscript: than in briefs. Butterick says that all-caps Despite the myth, the Uniform Com- “3rd,” “13th,” and “22nd.” Butterick recom­ mends­ text is fine for short headings—such as mercial Code’s definition of “conspicuous” turning off this default setting.7 For those of “TABLE OF CONTENTS”—as well as head- doesn’t require all-caps text; it says that you who follow The Bluebook or the ALWD ers, footers, captions, and labels, especially a statement can be conspicuous if it’s “in Guide to Legal Citation, they, too, prohibit if the all-caps text is smaller than the main contrasting type, font, or color to the sur- ordinal-number contractions in superscript.8 text. Apart from these limited applications, rounding text of the same size.”3 A Manual To change Word’s default setting that he says to avoid it.1 of Style for Contract Drafting cites only converts ordinal-number contractions to Why should lawyers limit their diet of three instances—statutes in Arizona, Flor- superscript, click on → all-caps text to these few circumstances? ida, and Oregon—that may require all caps → → → As Butterick points out, readers hate large for certain statements.4 Besides these lim- , and uncheck the box next to blocks of all-caps text because it’s more ited, state-specific contexts, I can find no . After you difficult to read than lowercase text. Those other authority that requires it. do that, click on the nearby tab and uncheck the same box. And for those readers who don’t have the caps text might lead to embarrassment, if luxury of skipping over large blocks of all- nothing else. For example, one court that caps text (e.g., law clerks, opposing counsel, had to decide whether a company’s arbi- Turn on kerning and clients), they’ll just be annoyed by it.2 tration agreement written entirely in all Kerning adjusts specific pairs of letters Yet contract drafters can’t seem to get caps was enforceable criticized the com- to improve their spacing and fit. Butterick enough of all-caps text. They’ll write the pany for writing it that way, observing that says to turn on kerning because it reduces parties’ names in all caps. They’ll write war- “when everything is emphasized, nothing large gaps between certain pairs of letters ranty disclaimers in all caps. They’ll write is emphasized.”5 and makes them consistent with the rest of limitation-of-liability provisions in all caps. Butterick’s right that overusing all-caps the font.9 They’ll write jury-trial waivers in all caps. text “is a truly noxious habit.”6 It’s time for Word’s default setting turns off kerning, And after they’re done writing these provi- the legal community to get rid of it unless so you need to turn it on by clicking on sions (and often more) in all caps, a large a specific law or court rule requires it. → → and

“Plain Language,” edited by Joseph Kimble, has been a regular feature of the Michigan One court criticized a company’s arbitration Bar Journal for 34 years. To contribute an article, contact Prof. Kimble at WMU–Cooley agreement written entirely in all caps, observing Law School, 300 S. Capitol Ave., Lansing, MI 48933, or at [email protected]. For an in- that “when everything is emphasized, nothing dex of past columns, Google “Plain Language column index.” is emphasized.” November 2018 Michigan Bar Journal Plain Language 53

right margins won’t limit how much you can write. If you heed Butterick’s recommendations, Although decreasing line length by in- creasing the width of left and right mar- they’ll set apart your work from that of the gins aids readability, I differ with Butterick’s thousands of lawyers who either don’t know margin-width advice in one respect: I wouldn’t set the left and right margins of about or don’t care about the benefits of a brief or contract beyond 1.5 inches. Lawyers get diminishing returns if they professional typography. increase the width of left and right margins beyond 1.5 inches. As margins progressively increase beyond 1.5 inches, a brief or con- then checking the box to the left of . In the box to the immedi- of 45 to 90 characters Even if a brief follows the court’s word- ate right of , choose count limits, for example, judges and their <8 Points and above>. Butterick also recommends limiting line law clerks may be less eager to pick up a length because “[s]horter lines are more com- 50-page brief with 2-inch margins than a fortable to read than longer lines [and] make Use curly quotes 43-page brief with 1.5-inch margins. If any- a big difference in the legibility and profes- instead of straight quotes thing despairs overworked law clerks more sionalism of your layout.”12 Individual lines than having to muddle through a poorly Except for foot (') and inch (") marks, shouldn’t be longer than 90 characters (with written brief, it’s the sight of a 50-page brief documents shouldn’t contain perfectly ver- spaces), which you can check by selecting that looks—just from its sheer length—like tical quote marks, also known as “straight the text in an individual line and then us- it will take an entire day to read. quotes.”10 Butterick explains that straight ing the word-count function (in Word, click Finally, I acknowledge that even 1.5-inch quotes are yet another vestige of the type- on → ).13 If you set left and right margins may seem too wide writer: “By replacing the curly opening and the left and right margins at no less than to the eyes of some writers. If you can’t closing quotes with ambidextrous straight 1.5 inches, it shouldn’t be a problem staying tolerate the sight of 1.5-inch margins, don’t quotes, two [typewriter] slots became avail- under the 90-characters-per-line limit. revert to 1-inch margins. Never go below able for other characters.”11 But even when 1.25 inches. Butterick would still disapprove ordinary people used typewriters, print- Use margins of no less of that choice, but splitting the difference ing presses and professional typographers than 1.5 inches between 1.5- and 1-inch margins is a pass- always used curly quotes. able compromise. Word’s default setting turns on curly Most lawyers use 1-inch left and right quotes (Microsoft calls them “smart quotes”), margins for their documents. But Butterick Use left-aligned or justified text but if you need to temporarily change that says that 1-inch margins are too small for setting, click on → → proportionally spaced fonts because these Left-aligned text has a clean left edge → → fonts don’t use as much horizontal page and an irregular right edge. Fully justified , and uncheck the box next space compared to traditional monospaced text has clean left and right edges.15 Al- to <"Straight quotes" with “smart quotes”>. fonts. He instead recommends 1.5- to 2-inch though Butterick prefers left-aligned text, After you do that, click on the nearby tab left and right margins. By increasing mar- he concedes that the choice is a matter of and uncheck gin width to at least 1.5 inches, you’ll create personal preference, “not a signifier of pro- the same box. more white space, and that white space will fessional typography.”16 Because Word uses curly quotes by de- enhance the document’s readability.14 I think that justified text is cleaner and fault, it’s now rare to see straight quotes in But what about court rules that limit the easier to read. Other lawyers swear by left- legal documents. But straight quotes can length of briefs and other documents to a aligned text. There’s no clear trend in the sometimes show up in draft briefs if the certain number of pages? Won’t increasing courts. The United States Supreme Court writer cut and pasted text from an elec- the left and right margins beyond one inch justifies the text of its opinions, but some tronic database or website that uses straight give me less room to write? Probably not. lower courts use left-aligned text and oth- quotes. If you find straight quotes in a Word In the past, courts often limited the length ers justify it. Justifying text in a brief sub- document and want to replace them with of briefs to a specific number of pages. But mitted to a judge who uses left-aligned text curly quotes, press and search for most courts now calculate brief length by probably won’t make any difference. But single and double quotes. When you find counting the total number of words or the if the judge is used to reading and writing the straight quotes, manually delete them total number of pages. Because of these rule left-aligned text, it can’t hurt to mimic the and insert curly quotes. changes, increasing the width of left and judge’s preference. Michigan Bar Journal November 2018 54 Plain Language

Hyphenate justified text All in all, give your home’s overgrown, weed-filled lawn, might legal writing curb appeal surmise: “If they can’t keep their lawn look- If you justify text, Butterick says to turn ing nice, Lord knows what that home looks on Word’s automatic-hyphenation function Whether a home has curb appeal is a key like on the inside.” n that breaks individual “words between lines factor in whether it sells quickly. A home to create more consistency across a text can have a gorgeous interior, but if the The provenance for this article is 10 block.”17 If you justify text and don’t use owner has neglected the lawn and land- Takeaways from Typography for Lawyers, automatic hyphenation, the result can be scaping, many potential buyers will pass which the author originally published at “gruesomely large spaces between words.”18 on it. The last thing new-home buyers want Lawyerist.com on July 7, 2011, and was last Word’s default setting doesn’t turn on auto- to do is spend time and money that they updated on October 10, 2015. matic hyphenation, so you have to turn it don’t have making the home look as great → on by clicking on and then selecting . In legal writing, as in selling homes, is senior counsel at HomeServices of America, Inc., in Hyphenation is particularly important if optics matter. Minneapolis. He publishes legalwritingeditor.com, the left and right margins are greater than Typography for Lawyers gives you the and you can follow him on Twitter @legalwritinged. one inch wide. Butterick explains that as tools to improve the curb appeal of your line length decreases, Word “can only break legal writing. If you heed Butterick’s rec- lines at word spaces” and there are “fewer ommendations, they’ll set apart your work ENDNOTES 1. Butterick, Typography for Lawyers: Essential Tools for possible break points in each line, making from that of the thousands of lawyers who Polished & Persuasive Documents (Thomson Reuters, awkward breaks more likely.”19 If you insist either don’t know about or don’t care about 2d ed 2018) at 83. on sticking with 1-inch margins (despite the the benefits of professional typography. 2. Id. at 82. advice in the previous section), hyphen­a­ And the best part about his advice is that 3. UCC 1-210(10) and UCC 2-316(2) (disclaimers of the implied warranty of merchantability must be tion will still improve the look of the text. adopting it is free and relatively simple. “conspicuous” but not requiring all-caps text). See But because more words can fit on each line But if you choose to ignore the basic also Wait v Roundtree Mobile, LLC, unpublished with 1-inch margins, hyphenation is less principles of professional typography in opinion of the United States District Court for the Southern District of Alabama, issued November 15, necessary to prevent the ugly white-space your legal writing, know that astute readers 2015 (Civil Action No. 15-00285-CG-M), at *12 gaps that occur more often when the mar- might assume the worst about your work— (“While in a smaller size font, the statement is printed gins are greater than one inch. just as a nosy neighbor, walking past a in bold, also meeting the definition of ‘conspicuous’” under Alabama’s version of the UCC). 4. Adams, A Manual of Style for Contract Drafting (ABA, 4th ed 2018), § 16.24. 5. Roberts v Blue World Pools, Inc, unpublished opinion of the United States District Court for the Western Become a Member District of Kentucky, issued September 11, 2015 (Civil Action No. 3:15-CV-00335-TBR), at *7 (stating that “having the entire one-page arbitration agreement capitalized is a poor way to draw attention to the Paralegal/Legal Assistant Section specific rights being waived,” but holding that the agreement wasn’t procedurally unconscionable of the State Bar of Michigan (citing Butterick, Typography for Lawyers at 87)). 6. Butterick, Are Two Spaces Better Than One? Our high-quality, low-cost programs provide you with discounts on every­ A Response to New Research, Butterick’s Practical Typography, 2d ed (April 30, 2018) (accessed October 11, 2018). your profession. 7. Typography for Lawyers at 100–101. 8. The Bluebook: A Uniform System of Citation, Membership Benefits Include: Rule 6.2(b)(ii) and ALWD Guide to Legal Citation, Rule 4.3(b). • The quarterly Michigan Paralegal Newsletter, the monthly Michigan­ Bar 9. Typography for Lawyers at 94. Journal, and the Annual Membership Directory 10. Id. at 38–40. 11. Id. at 39. • Insurance (including health and reduced auto insurance) 12. Id. at 140. 13. Id. • State Bar Platinum Gold MasterCard (to those who qualify) 14. Id. at 141–142. • Many more benefits 15. Id. at 133–134. 16. Id. at 134. For information, contact: [email protected] 17. Id. at 145. 18. Id. at 134. 19. Id. at 146.