Typographic Legibility: Delivering Your Message Effectively Mark Sableman Lawyers deliver most of their messages through words in print (on paper or screen), but usually they pay little attention to the typographic forms that convey their messages. Legal ty- pography probably gets less thought from lawyers than the se- lection of physical delivery services. In the days of the typewriter (manual, electric, or memo- ry), we churned out our briefs and letters in the standard font, commonly known as “Courier” for the name that IBM gave its standard typewriter font, a font in which (because of the me- chanical needs of typewriter keys) each letter took up exactly the same width. Once computer word processing became avail- able to lawyers, we looked for a standard and seemed to find it in “Times Roman,” the word-processing standard font derived from Stanley Morison’s famous 1929 design for the Times of London. When we needed to emphasize something, WE JUST SHOUTED IN THE WAY THAT SEEMED NATURAL IN TYPING, WITH ALL-CAPITAL LETTERS, BY LOCK- ING DOWN THE SHIFT KEY ON OUR KEYBOARDS. We gave up old ways slowly and grudgingly. On a typewriter, underlining was a substitute for the italics that the mechanical device didn’t offer — but plenty of lawyers stuck to underscor- 10 The Scribes Journal of Legal Writing 2016–2017 ing case names and words of emphasis, even after italics became available.1 Lawyers are so conservative that they are unlikely to change their typographic ways just because their ways are old- fashioned, outdated, or even somewhat ineffective in meeting their persuasive and expository goals. But lawyers do care about compliance with the law, especially clear statutory directives. And current legal typographic practices arguably violate statu- tory directives requiring clear presentations, particularly of im- portant contractual provisions like liability disclaimers. While this issue has existed for years, recent attention to typographic legibility is bringing it to the fore and is likely to affect how courts interpret statutory legibility requirements. Not unlike the movement for plain-English consumer contracts that began in the late 1970s, the new scholarship may open up a good-typography movement. In short, courts may eventually declare bad typography ineffective for conveying its message, potentially voiding or imperiling important provisions of many contracts that have been drafted using suboptimal typography. Importance of Typographic Legibility Before we address legal requirements, let’s consider whether lawyers should care about typographic and visual legibility even without legal compulsion. Typography deals with the presenta- tion and legibility of words on a page. We as lawyers use words on pages, every day, for two purposes: persuasion and explana- tion. As litigators, we seek to persuade judges, adversaries, and third parties of our clients’ positions. As transactional lawyers, 1 See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 122 (2008) (“As for underlining, it is a crude throwback: that’s what writers used in typewriting — when italics weren’t possible. Nobody using a computer in the 21st century should be underlining text.”); Robert W. Harris, The Elements of Visual Style 118 (2007) (“[U]nderlining cuts through the descenders of lowercase letters, thereby making the letters harder to identify.”). 2016–2017 Typographic Legibility 11 we seek to clearly document business agreements and transac- tions. Clarity and understanding are always essential. “Our written language is communicated through type. Ty- pography conveys or obscures and gives voice to our message in one fashion or another.”2 If I were to write my briefs using a typographic style that did not facilitate comprehension by my intended reader, I would be doing my client a disservice — even if, for ex- ample, I used a classic typeface that traced back to Gutenberg and the Bible. Readability depends in part on familiarity, and some types communicate better than others.3 For example, typewriter typefaces were al- ways less than ideal. The typewriter’s me- chanics (exactly the same striking surface for each letter) required that each letter be designed to be the same width -- the letter i stretched out so that it would fit in the same space as the letter m. That made words longer than necessary, and because our reading occurs through repeated “fixations” of our eyes on groups of words, it slowed down reading and comprehension, since it took more fixations to read the same content than with proportionately spaced letters. At times, lawyers using Courier compounded the legibility problem by using full justification — that is, aligning the type not only on the left margin but also on the right. This practice, derived from professional printing but often ill suited to typed documents, injected extra spacing between the already-extended Courier-set words, thus putting even less content in each eye fixation. And the extra word spacing made it more difficult for the eyes to grasp related words in meaningful groupings. 2 Paul Kahn & Krzysztof Lenk, Principles of Typography for User Interface Design, 5 Interactions 15, 16 (Nov.–Dec. 1998). 3 Phil Baines & Andrew Haslam, Types & Typography 125 (2d ed. 2005) (“Our collective perception of what is legible is not a constant value: with every new reading the unfamiliar becomes the familiar.”). 12 The Scribes Journal of Legal Writing 2016–2017 Modern proportionately spaced typefaces generally solve the spacing problem. In most of the typefaces we use today, the letter i is far thinner than the letter m, and every letter is propor- tioned so that it best fits with other letters, making words com- pact and easy to grasp, as our eyes take in text in multiple-word fixations. But proportionality is only one issue in typographic legibility. Consider the difference between lowercase and uppercase letters. Our eyes are accustomed to reading lowercase letters, with a modicum of capitals mixed in. And lowercase letters are used for a reason — their distinctive shapes are instantly recog- nizable, given varieties of width and design, including promi- nent design elements such as the ascenders on the letters b, d, f, h, k, and l, and the descenders on the letters g, j, p, q, and y. Particularly because of the ascenders and descenders, we can usually comprehend a line of lowercase type even if we cover up the top or bottom half of the line. Uppercase letters lack the distinctive outlines of lowercase letters and for that reason, as well as their infrequency, are much harder to read. Giving us no clues like the rugged top and bot- tom edges of lowercase type, they impede comprehension.4 All-caps text is also difficult to read because readers are most experienced with reading upper- and lowercase letters com- bined, and because it is more difficult to pick out names in all- caps text.5 OUR EYES MUST SLOW DOWN TO FIX ON AND PROCESS LETTERS OR SINGLE WORDS, NOT WORDS OR GROUPS OF WORDS. WHENEVER, IN THE COURSE OF READING TEXT, YOU ENCOUN- TER ALL-CAPITAL LETTERS, YOUR READING WILL 4 Betty Binns, Better Type 17 (1989) (“Psychologists and reading experts have also discovered that once we have mastered reading, we largely recognize words by their outlines, rather than by their individual letters. This tells us that long passages of capital letters are difficult to read, since words composed of all capitals have basically rectangular outlines and lack ascenders and descenders.”). 5 Harris, The Elements of Visual Style at 21–22. 2016–2017 Typographic Legibility 13 AUTOMATICALLY SLOW DOWN AND YOUR COM- PREHENSION WILL BECOME MORE BELABORED. IF YOU ARE LIKE MOST OF US, YOU WILL LOOK FOR WAYS TO AVOID SUCH BELABORED READING, AND MAY WELL SKIP ON TO THE NEXT SECTION, IN LOWERCASE TEXT. Variations among different typefaces can also affect compre- hension. This is most clear with the distinctions between ro- man and sans-serif type, and between typefaces with different x-heights. “Roman type” refers to type with serifs, those little ex- tenders at the end of each typographic stroke; “sans-serif” type (sometimes referred to as “Gothic”) means type without those flourishes. Some typographic experts believe that serifs assist readability, perhaps because we have grown up with mostly ro- man types and perhaps because the serifs help our eye to recog- nize letterforms.6 Similarly, x-height is a significant feature in legibility, par- ticularly as it affects type size. A brief explanation is necessary about type sizing. In the era of metal typesetting and letterpress printing (roughly from Gutenberg until the 1960s), type was measured by the height of the metal piece on which each let- 6 Id. at 12–13 (describing characteristics of serif type that makes it more readable, including familiarity, distinctiveness of letterforms, and beneficial aspects of the serifs in tying words together and creating a horizontal base to each text line); Walter Tracy, Letters of Credit: A View of Type Design 31 (1986) (“[T]he characters in a particular sans-serif face may be perfectly legible in themselves, but no one would think of setting a popular novel in it because its readability is low. (Those typographers who specify a sans-serif for the text columns in a magazine may be running the risk of creating discomfort in the reader — to the ultimate benefit of a rival journal.)”). But see Manuel Perea, Why Does the APA Recommend the Use of Serif Fonts?, 25 Psicothema 13, 16 (2013) (reporting results of readability test: “In a normal reading setting . the presence of serifs does not impact on read- ing fluency. The present data are entirely consistent with the claim that ‘reading appears to proceed at about the same rate if the type font, size, and length of line employed are all reasonable’.”).