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7th Circuit Rules on Brief Formatting:

One of our intrepid Commenters on my earlier post on the "ruler incident" mentions the 7th Circuit's remarkable treatise on brief formatting rules. Quite a work to behold.

Related Posts (on one page):

  1. More on Brief Readability and Formatting:
  2. Supreme Court Briefing Rules:
  3. 7th Circuit Rules on Brief Formatting:
TC:
The 7th Cir rules on formatting are a great example of the unintentionally hillarious. It is hard for practitioners to take seriously the Courts plea to make our arguments short and to the point when it takes seven single spaced pages to explain what font to use.
7.12.2005 11:38am
Kristian (mail) (www):
TC, I have to disagree. I think the treatise is actully quite good. They made the point that in the way back when, professional print shops knew the right rules for formatting this stuff, but now many are doing it in house. And they are NOT desktop publishing experts.

Giving some background into the rules can make the difference between understanding the rules, and thus applying them correctly, and 'Rule is Rules' approach of mindlessly applying rules without regard to applicibility.

Frankly, I was suprised at how correct and readible the notes were. Of course, I do know a little about desktop publishing, and so I understood the technical terms without needing them defined, but as a reference, that is not a bad thing...
7.12.2005 11:45am
Steve:
The 6th Circuit has bizarre rules as well. At one point I had to purchase something called a "pica ruler" and get on the phone with the clerk while he described for me how high the letter f needs to be, or something of the sort. A standard Microsoft Word font shouldn't result in that kind of grief (unless your name is Dan Rather).

Anyone who ever wrote an essay knows all the ways the system can be gamed, but I never realized it was such a miscarriage of justice if someone managed to squeeze a couple extra pages of text into their brief. One paragraph in the rules ought to be plenty to specify the page limit, margins, font size, and whatever else is deemed mission-critical.
7.12.2005 11:45am
John J. P. (mail):
The Third Circuit wisely allows attorneys to certify the number of words in a brief. If you choose that option, then page length doesn't matter. This gets around all the squeezing tricks.
7.12.2005 12:42pm
Steve:
I would hate to be the hapless associate whose job is to strike out as many indefinite articles as possible at the last minute.
7.12.2005 12:51pm
Proud Generation Y Slacker:
I like the 7th Circuit's rule. I'd make them shorter:

1. Your modern personal computer is a miniature printing press, not a typewriter.
2. Make it look like a book, not a manuscript from the 60s.
3. Don't do anything stupid.
7.12.2005 12:56pm
A. Nonymous (mail):
This reminds me of something from my undergrad days. Freshman taking an intro something or other course asks a Junior who had previously had the professor what was "really" meant by 10 double spaced typed pages and can he play "funky" with the margains. Junior, wisely and perhaps from experience, noted that "You play funky with your font or margain and he'll play funky with your grade."

So we turn to Proud Generation Y Slacker's modified version: Don't do anything stupid.
7.12.2005 1:00pm
Proud Generation Y Slacker:
The only reason I'd stick around at the firm long enough to try for partnership is to make them get rid of their one-inch indents. That's just vulgar and vile.
7.12.2005 1:03pm
Ciarand Denlane (mail) (www):
Those kinds of rules serve a purpose. Perhaps especially in that circuit: I used to like the look of Arial (a sans serif font not allowed in the Seventh Circuit) until I once had occasion to write a paper that required frequent use of the word, and abbreviation for, "Illinois."
7.12.2005 3:04pm
John Lederer (mail):
Sigh. I think I am partially responsible for the genesis of some (but not all) of the rules.

Way back, the Wisconsin State Bar had a "Tech Resources Committee" to deal with new fangled technology. There had been a number of problems with word processed briefs falling in an uncomfortable chasm between "printed" and "typed". Some lawyers abused the then existing typed rules, and the judges threatened to ban word processors.

Our rules, developed jointly with the judges were the result. The key features were a word limit rather than a page limit, specified type (serif), line length, and point sizes. We tried to rely on studies of readability rather than tradition.

Those proposed and later adopted rules seemed to be the starting point for many other courts. I know we received dozens of requests for our proposal and back up research after one judge spoke about them at several judicial conferences.

An interesting point--we originally proposed the fairly standard 12/10 point for text and footnotes. We produced samples. The judges had trouble with them -- despite our research that indicated the 90+% of the population found those sizes comfortable to read. Several of the judges said they simply would not fully read these briefs.

A little further research indicated that the minority who had trouble with 12/10 were basically people over 65-- whoops. We changed to 13 points and 11 points. I recommend that any appellate lawyer use the larger sizes even if the court specified minimum is 12/10.

And a final point about brief length. One appellate judge explained that when he went to "do his business" he took a brief with him. When he was done with his business, he was done reading the brief, and he added, "I am a slow reader".

One unexplored permission in the rules as we originally proposed them was that we deliberately excluded including pictures or graphs to count against the brief length to encourage counsel to use these. They have not.

That is unfortunate. I can recall in a U.S. Supreme Court argument I had having a fine point about the silent commerce clause interrupted by Justice Marshall who had found a picture in the the appendix. We had taken side by side photgraphs of legally permitted trucks with those banned, arguing that the state was discriminating based on its economic interests.

Holding it aloft and pointing he said "You mean this truck is legal and this one is not?" "Yes sir" . Justice Marshall waited till opposing counsel arose for his turn and immediately asked whether there was something wrong with the picture, once more brandishing it aloft. Opposing counsel allowed that the picture was accurate. Justice Marshall gave a loud "Hmmmph!" and we knew we had one vote -- based on a picture.
7.12.2005 3:27pm
Anon (mail):

Pursuant to 5thCir. R. 32.2 and .3, the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5thCir. R. 32.2, THEBRIEF CONTAINS 3,867 words.2. THE BRIEF HAS BEEN PREPARED in proportionally spaced typeface using Microsoft Word 98, in the following typeface name and font size: Times New Roman, 14 pt.3. THE UNDERSIGNED UNDERSTANDS THAT A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR A CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF. __________________________ Joseph D. Lonardo 07/11/2000 - 610053.v2


At one time the 5th Circuit rules required "sans" fonts (it appears they made a mistake because they wanted serif fonts).

The 7th Circuit sure has a hate for Times Roman and a love of fonts many of us really dislike. Well, guess it is a good warning that someone up there is committed to stamping out Times Roman, one brief at a time.
7.12.2005 3:29pm
Paul Gowder (mail):
And this is why every study ever done shows that lawyers are miserable: it took a bunch of maniac "type a" types to write such an abomination, and it takes and creates similarly maniac "type a" types to follow it and pretend to give a damn. Cf. the bluebook.
7.12.2005 3:54pm
John J. P. (mail):
Paul -- Judges come up with these rules in self-defense. They are expected to plow through a crushing amount of paper in the course of doing justice. If I were in that position, I would certainly use whatever rulemaking power I had to cause lawyers to make their submissions uniform and legible and not unduly long.
7.12.2005 4:05pm
John Lederer (mail):
The 7th Circuit was furious when it rejected a brief for exceeding the then existing page length limit -- only to have the brief submitted with the same text--but now moved into footnotes where the sly lawyer had put them to make use of smaller type and thus meet the page limit.
7.12.2005 4:41pm
Steve:
Paul has a point, but not for the reasons he thinks. These rules would be unnecessary if lawyers would realize that a readable brief is a more persuasive brief. Even if the rules permitted me to meet the page limit by printing my brief in 8-point type, I would know the judge wouldn't appreciate it and therefore I shouldn't do it. Unfortunately, many lawyers fail to use common sense when it comes to the judge's preferences, puzzling since persuading the judge is 99% of the reason you file a brief. So judges have to legislate common sense upon the hapless brief-writers.
7.12.2005 4:42pm
Freddy Hill (mail):
Proportional font, check. Laser printer, check. Photocopy, check.

So it seems that the Rathergate memos meet the Court's standards. They most clearly were ahead of their time.
7.12.2005 5:41pm
Zywicki (mail):

And a final point about brief length. One appellate judge explained that when he went to "do his business" he took a brief with him. When he was done with his business, he was done reading the brief, and he added, "I am a slow reader".

John--This is one of the funniest things I have read in some time!
7.12.2005 5:47pm
Paul Gowder (mail):
Steve: also true. The neurotic paranoia and anal-retentiveness is a never-ending vicious circle. The anxiety-ridden anal-retentive lawyers jam ridiculous nonsense into briefs, causing the anal-retentive judges to jam it back... and the consequence I have to spend hours micro-reading the FRAP to determine what goes into an appendix.

holy... my... the FRAPs actually do contain rules for serifs! FRAP 32(a)(5)(A). I've probably violated that one. Because I didn't know what a serif was until reading the 7th circuit's tome! Did anyone else here, who hasn't actually worked in a print shop???? WHY on EARTH would anyone write SERIFS into the RULES?!

Don't they have anything better to do?
7.12.2005 6:53pm
John Lederer (mail):
Paul,

You neatly express the reason. Serif fonts (think Times Roman as an example, but don't use it in your brief for other reasons) are much more readable in body text. Sans-serif fonts are for headings (my browser shows these comments in sans-serif, think Helvetica) and are harder to read in body text.

Most lawyers,as you state, don't know what a printer would. By using a word processor the lawyer controls what a printer used to. Ignorance means he will screw up unless educated or given rules.

Many lawyers assert that they "like" this or "like that". They view typography as a matter of aesthetics.

In actuality readability is largely a mechanical thing. It can be measured. A common test is to bounce a laser off the back off of a subject's eye, and record its reflected movements to determine what is actually read and with how much repeat movement. Much of readability consists of being able to smoothly scan from the end of one line to the next.

Serif fonts, short paragraphs, and short lines make a big difference there, and one that can easily be measured. Short lines are the largest factor--line optimum is about 45 characters, and readability starts falling off rather quickly when the lines are over 60 characters. The laser reflection will actually show the reader reaching the end of a line and then reading the beginnings of several lines in short jerky movements. The reader has to "search" for the next line by using context.


A second part of readbility is being able to quickly see groups of letters. Kerning and the shapes of the characters matter -- which is why Century Schoolbook, designed to exaggerate the differences in letters for schoolchildren is a very readable font.

To kill readability, use a sans-serif typeface in a small font with poor contrast, long paragraphs, and long lines. You know the style-- -- look at any consumer loan agreement .



Interestingly people are not reliable reporters of what they read, and how well they read it. Studies have shown that people will, when asked, insist that they easily read all of a printed matter piece, whereas the laser indicates that after a period of erratic tracking they "balked" and started skipping most of the material.

When I practiced I put a lot of effort into briefs. I would hate to think that the effort was wasted because something as silly as using the wrong typeface caused the judge to skip most of my brief.
7.12.2005 11:22pm
DC Lawyer:
The 7th Circuit document is not a list of rules. It's a list of rules *and suggestions*. I found the suggestions on typesetting and such quite informative.
7.12.2005 11:57pm
Paul Gowder (mail):
John, yea, but at some point, do the rules become inefficient? C'mon, I'm commenting on a conservative site, surely y'all feel a little discomfited by this niggling little regulation...

I'll bet you can take any 50 appellate lawyers in the country and quiz them, and not 5 will know what a serif is. (Except, perhaps, in the 7th circuit.) I'll bet the same can be said for appellate judges and clerks. FRAP 32(a)(5)(A) is probably thus the most violated rule in history...
7.13.2005 10:41am
John Lederer (mail):
Ahh, but Paul think of the advantage to be gained....

Of course when I remonstrated with one tax lawyer about the nearly impossible to comprehend material he had just sent in a letter to the IRS, his response was "You are assuming I want them to understand it."
7.13.2005 6:28pm