Hey Hey, Ho Ho, 19th Century Fonts Have Got to Go

When we think of well-designed and attractive written documents, we don’t often think of the things lawyers write. But Matthew Butterick and a few other lawyers are trying to change that. “Typography is the visual component of the written word,”¹ and lawyers who ignore how their documents look diminish their ability to be truly effective on behalf of their clients.

Our legal training, the ingrained prejudices of the law, and the perverse economic incentives of law practice got us in this mess. Using better fonts is one way to get out of it.

First, let’s distinguish between typography and font. Typography is not just another word for font. Typography includes everything connected with the visual appearance of type, including font.²

For lawyers, typography is a means to an end: persuading the reader to do what we want. And choosing a good font is an easy way for lawyers to improve the persuasive power of their writing.

The Judge Has it RADD, and That Ain’t Good

Typography matters because it helps con­serve the most valu­able resource you have as a writer—reader atten­tion.³

In a world where Apple spends billions to make its iPhones look beautiful and Niantic spends years developing 151 different types of Pokémon, lawyers are content to file something that looks like this:

Bad legal design like the “paragraph” above is one of the leading causes of Revoked Attention Donation Disorder  (RADD) in judges. Judges develop RADD when lawyers squander the gift of the judge’s attention by “scatter[ing] some words across some pages” instead of presenting those words in the most effective and persuasive way possible. ((Id))

Remember: a distracted judge is not a friendly judge.

Origin Story

Many non-lawyers (and some lawyers) assume that odd typographical quirks serve a purpose, but that we don’t know what it is. In fact, most are carryovers from another era, and whatever function they once served no longer exists. Let’s take a few that often turn up in legal writing:

• Two spaces between sentences;
• Multiple hyphens instead of dashes;
• Underlining anything;
• Monospaced fonts rather than proportional fonts;
• Abusing all caps; and
• Thinking the best point size for body text is 12.

These all have one thing in common: they are bad typography habits left over from the typewriter era.⁴ We don’t need them any longer.

No, Activist Judges Didn’t Take Away Your Good Fonts

If Matthew Butterick didn’t exist, it would be necessary to invent him.
—Bryan A. Garner⁵

You’ve heard it before. Maybe you’ve said it. “I’d love to use Matthew Butterick’s super-awesome fonts, but Judge McGillicutty is a curmudgeon and won’t let me get away with it.” As though an archaic system of judge-made rules is trapping lawyers in the 19th century. But most federal and state courts don’t tell you what fonts you must use. There are some exceptions, and the table below provides most of them:

“Read your court rules carefully—you’ll probably be surprised at how much is left to your discretion.”⁶ Usually, rules covering fonts are more like Local Rule 11-3.1.1 from the U.S. District Court for the Central District of California: “A proportionally spaced face must be 14-point or larger, or as the Court may otherwise order.” There is no mention of Times New Roman or any other font. In most courts, in front of most judges, most of the time, lawyers can escape the prison of bad design and mediocre fonts without breaking the rules.

But we have to want to.

Poll Results Are In: the Enemy Is Us

Butterick gives four reasons why lawyers are so typographically backward:⁷

1. Bandwagon effect: “Lawyers usually assume that all the other lawyers are following the rules, so if everyone uses 12-point Times New Roman or puts two vertical lines in the left margin, it must be that the court demands it.”
2. Fear of sanctions.
3. Force of habit: “To create today’s filing, lawyers will often just start with last week’s filing, which was based on the filing from the week before that, and so on back to 1979.”
4. Lack of typographic skill.

Butterick left out another reason—a reason I wouldn’t believe except that I’m staring at the poll results right now: lawyers like terrible fonts. Sad!

#LawTwitter:
Take the first-ever Twitter #legalwriting font poll.

What is your favorite #legalwriting font?

— Brendan M. Kenny (@KennyBrendan) June 15, 2016

Before you reach your own conclusion, you should look at the choices included in the poll by comparing them in the excellent Periodic Table of Typefaces.

I strong-armed every lawyer that I could to vote in this Twitter poll, and Times New Roman decisively carried the day.

That isn’t to say that no one voted the right way. The legal Twitterati came out in force against Times New Roman:

#TeamGeorgia https://t.co/Hz4DXAJna6

— Judge Dillard (@JudgeDillard) June 15, 2016

@MartyATX I like Century Schoolbook & Adobe Caslon. I’m also a big fan of Equity – a font created by Butterick especially for legal docs.

— Jason P. Steed (@5thCircAppeals) May 20, 2015

Too depressed to vote because I’m not allowed to buy fonts to install on my work computer. https://t.co/8J2EZkMLfZ

— Supreme Court Places (@SCOTUSPlaces) June 16, 2016

But the silent majority of lawyers on Twitter voted for the status quo. And if you think I’m overstating things, you should know that some lawyers unironically voted for Courier as their favorite font. They’ll remain anonymous because I’m against shaming my fellow lawyers. But you know who you are.

Bad Fonts Drive Out Good Fonts

Knowing that lawyers choose bad fonts over good ones is one thing and explaining it is another. Legal designer Alex Devendra points to the specialized nature of lawyering to explain why market forces haven’t encouraged lawyers to do a better job practicing law:

One of the features of a credence good is that the buyer is unable to judge the quality of the good for herself. So, what is a person to do when she needs to find a good lawyer? If she can’t judge the quality of the lawyer’s work directly, she instead relies on “spurious indicia” of quality such as the lawyer’s office décor, academic credentials, tough talk, or punctuality.

According to Devendra, the buyer’s inability to judge the quality of legal work also helps account for bad design:

For the same reasons, bad design has become a spurious indication that a legal document is high quality. Take a contract, for example. If the reader can’t judge the quality of the legal provisions for herself, at least she can compare the contract to other contracts she has encountered in the past. If the new contract looks too “different,” she might doubt its quality—even if it’s actually better written.

If this is true, market forces will not punish bad design until clients feel that they can accurately judge the quality of legal work without being lawyers themselves. Until then, lawyers are on their own.

Beauty Isn’t in the Eye of the Lawyer?

“Beauty will save the world,” said Prince Myshkin in Fyodor Dostoyevsky’s The Idiot.

Maybe it’s time for lawyers to think less like lawyers and more like living, breathing, human beings who can recognize beauty. You decide which version of this judicial opinion a living, breathing, human being would want to read:

Sample Doc Court Opinion Before by lisaneedham on Scribd

Sample Court Doc After

Now tell me that fonts and typography don’t matter.

The Decline and Fall of the Times New Roman Empire

Times New Roman is named after the Times of London, which commissioned it in 1932. The Times itself stopped using it in 1972 when The Gipper was governor of California,  an average new house cost $27,550, gas cost 35 cents a gallon, and you could get a new Ford Pinto for $2,078.⁸ And since 2008, Times New Roman appears to be dropping out of public consciousness:

And among non-lawyers, caring about fonts is actually cool.⁹

Type people—what’s a typeface from the last 5 years that you wish you had designed yourself? Let’s share some praise.

— Grilli Type Foundry (@grillitype) July 11, 2016

Anyone down for an Extreme Font Makeover reality show?

CHUCK NORRIS WHISPERS IN ALL CAPS

If lawyers want to capture the hearts and minds of our audience, we should learn how to tell a story. If we want to get our audience to remember the most important evidence, we should use visuals. If we want to be better writers, we should use plain language. And if we want judges to do what we want, we shouldn’t force them to read a document that looks like it was written by a scrivener in a Charles Dickens novel.

Featured image: “Pay Heed to My Moderate Displeasure” by Unknown is unlicensed. The image has been modified by replacing the signs in the original picture with signs that I created.

1. Matthew Butterick,  Typography for Lawyers 235 (2d ed. 2015 ↩

2. Typography for Lawyers, http://typographyforlawyers.com/what-is-typography.html ↩

3. Typography for Lawyers, http://typographyforlawyers.com/why-does-typography-matter.html ↩

4. Typography for Lawyers, http://typographyforlawyers.com/typewriter-habits.html. ↩

5. Matthew Butterick, Typography for Lawyers 9 (2d ed. 2015 ↩

6. Matthew Butterick, Typography for Lawyers 218 (2d ed. 2015)  ↩

7. Id. at 218–19 ↩

8. http://www.thepeoplehistory.com/1972.html. ↩

9. Helvetica has its own documentary! ↩

Hey Hey, Ho Ho, 19th Century Fonts Have Got to Go was originally published on Lawyerist.com.