Ugly Legal Writing

Published in Landslide Vol. 11 No.2, ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Legal writing not only sounds bad. It looks bad.

Not a pretty sight, all those in-text citations, see, e.g., C. Edward Good, “Ugly Legal Writing,” 11 Landslide, no. 2, Nov./Dec. 2018, at 55; parenthetically defined terms (hereinafter “defined terms”); ALL-CAPS HEADINGS; and various other typographical flaws.

So here I’ll offer 11 ways to give legal writing a much-needed facelift.

1. Use MS Word Styles

Most lawyers these days use MS Word. Unfortunately, many don’t know how to use MS Word styles. When they create a document, they type it in the “Normal” style, which automatically appears when they start a “new” document. When they need a blank line between paragraphs, they hit the “Enter” key twice. When they need to indent the first line of a paragraph, they hit the “Tab” key. And when they need to format an indented quotation, all sorts of bad things start to happen.

Legal writers would save a lot of time if they would learn how to use MS Word styles. A style relates to a single paragraph. It governs the font, the left and right margins, the space between paragraphs, indentation of the first line, tab settings, and various other formatting features.

For around $18.40 you can buy Word 2016 for Dummies. Save the receipt. Surely it’s deductible. Then, when you learn how to use MS Word styles, your life as a writer will never be the same. It’ll get a whole lot better.

Widow and Orphan Control

When you use styles, you can specify that a page break never occurs so that a single first line of a paragraph sits alone at the bottom of a page (orphan) or so that the last line of a paragraph sits alone at the top of the next page (widow). In your style, you can check “Window/Orphan Control,” and this will never happen. MS Word will always make sure two lines sit at the bottom of the page or at the top of the next.

If you haven’t set up various styles to use in your documents and encounter a widow or orphan paragraph, here’s the fix: With you cursor somewhere in the paragraph, right click and then left click “Paragraph.” Left click “Line and Page Breaks,” and then left click “Widow/Orphan Control.”

Keep with Next

Nothing looks worse than a heading sitting at the bottom of a page with no text beneath it. The text appears at the top of the next page. To prevent this from happening, right click on the heading, then left click “Paragraph.” Left click “Line and Page Breaks,” and then left click “Keep with Next.” Now the heading, if it appears at the bottom of the page, will automatically wrap to the next page and stay with the ensuing paragraph.

2. Use Hanging Indents

When you create a numbered list or your point headings in briefs, you should use hanging indents. I won’t go through the MS Word steps to produce these formatting features (ask your IT people for help). I’ll simply show you examples:

1. Many legal writers create numbered or bulleted lists that look like this, the text wrapping back to the far left margin.
2. Instead, they should create numbered or bulleted lists that look like this, the text wrapping back to a left margin that is further indented. This is called a hanging indent.

You should never manually produce numbered lists by typing the numbers. MS Word has styles for that. Add the style, type the list, and the numbers and formatting automatically appear. If you later move item #2 to item #6, the numbering will automatically change.

Again, buy the Dummies book.

3. Avoid Weird Fonts and Don’t Use Multiple Fonts

If a court prescribes a font, use it. Never vary font size to come within a page limit.

Many lawyers use Times New Roman, which the Times of London uses for its newspaper. But the column width of newspaper articles differs from that in a legal document. The Seventh Circuit has some sage advice on its website at ca7.uscourts.gov: “Use typefaces that were designed for books. Both the Supreme Court and the Solicitor General use Century.” The site goes on to recommend several acceptable fonts.

Also, never mix fonts. I’ve seen documents where block quotations appeared in one font, ordinary text in another.

4. Don’t Overuse Italics and Bold—Avoid Underlining

Some lawyers use underlining for, say, signal words and italics for case names. They might write:

See, e.g., Jones v. Smith, 401 F.2d 902 (4th Cir. 1971).

With modern word-processing technology, you can pretty much forget about using any underlines at all. Stick to italics. The only underlining that should appear in legal writing is a signature line at the end of a filing or contract.

Don’t underline headings and never underline the words in a point heading in a brief. If you look at top magazines and published books, you won’t find underlined text anywhere. After all, it’s ugly.

You should certainly use bold type for headings. You may use bold or italics for emphasizing text. Never use both. Avoid emphasizing line after line in the body of your argument. When you emphasize everything, you emphasize nothing.

5. Use Defined Terms Only When You Need Them

As Bryan Garner points out: “Legal writers have become enamored of defined terms. Here, as with footnotes, we see writers mistaking the forms of scholarship for its substance. Although it may be convenient, even desirable, to be able to refer to ‘the Agreement’ and to know precisely what is referred to, the habit has so insidiously worked its way into legal writing that we sometimes see defined terms that are defined and then never again used.”¹

Garner labels hereinafter called a “stilted legalism easily avoided.”² He advises: “Ordinarily, a shortened name unambiguously follows the full name.” Then he provides these two examples:

Poor

Acme Fire & Casualty Company (hereinafter called “Acme”) moves that the court dismiss the action. Acme urges this court to consider the rule in . . . .

Better

Acme Fire & Casualty Company moves that the court dismiss the action. Acme urges this court to consider the rule in . . . .³

After all, what else would you call “Acme Fire & Casualty Company”? When you later refer to it as “Acme,” your readers won’t furrow their brows and wonder what on earth you’re talking about.

If, for some reason, you need to refer to Acme as AFCC, then create your defined term without the “hereinafter” business.

Acme Fire & Casualty Company (AFCC) moves that the court dismiss the action. Acme urges this court to consider the rule in . . . .

6. Use Ordinary Capitalization in Point Headings in Briefs

According to The Bluebook, legal writers should capitalize all words in headings and titles except:

1. articles (e.g., a, an, the);
2. conjunctions of four or fewer letters (e.g., and, if, but); and
3. prepositions of four or fewer letters (e.g., to, for, of, from).

Any word following a colon should also appear in uppercase.

Does The Bluebook really govern point headings in briefs?

The Bluebook does apply the above rule to “headings and titles.” But headings in documents typically occupy no more than a single line. Point headings in briefs, however, can run on for five or more lines. Should the headings rule apply to these point headings?

Bryan Garner thinks not, and I agree with him. In a recent e-mail advertising his writing seminars, he included the following:

How should point headings be formatted?

Ideally, they’re complete sentences that are single-spaced, boldfaced, and capitalized only according to normal rules of capitalization—that is, neither all-caps nor initial caps. Even if court rules require headings to be double-spaced, all the other rules nevertheless apply. All-caps headings betoken amateurishness.

Surely point headings presented under regular rules of capitalization are far easier to read, especially in tables of contents that will feature a series of point headings.

Most law offices do follow The Bluebook. But I think it reasonable to conclude that The Bluebook’s rule on capitalizing words in headings applies not to point headings but only to headings that divide sections of text.

7. Progressive Indentation

Either for point headings in briefs or for text-dividing headings in all documents, many legal writers use far too many levels of headings. I’ve seen as many as six. Then the heading-hungry writers will use a regular five-space tab grid. They’ll tab over to reach the correct level of subheading and produce this:

iii. The Estoppel Defense

Needless to say, the writing becomes even uglier.

This “progressive indentation” belongs in only one place in legal writing: tables of contents.

They do not belong in the text itself.

Ideally, use no more than four levels of headings. Use an Arabic numbering system. To denote them in text, do not use progressive indentation. Instead, use different font styles.

1. Large Bold

A. Bold

(1) Bold Italic

(a) Italic

All headings should appear flush left, not indented. Progressively indent them only in the table of contents. (MS Word automatically does this for you with special “Table of Contents” styles.)

8. Use Curly Quotation Marks

Nothing looks worse than those straight-up-and-down "quotation marks." Instead, you need to turn on the curly quote feature of MS Word. Then you’ll produce correct “double quotation marks,” correct ‘single quotation marks,’ and a correct apostrophe: ’.

If you copy and paste material from another document that used noncurly marks, simply do a global search-and-replace: search for ["/" quote marks], replace with [“/” quote marks]. Bill Gates will then fix things for you, changing the ugly straight quotation marks to the more pleasing curly ones.

9. Use Nonbreaking Spaces

Click the “Insert” tab in MS Word. At the far right, click “Symbols.” Click “More Symbols.” Click the “Special Characters” tab. There you’ll find the nonbreaking space, the section symbol, the paragraph symbol, the nonbreaking hyphen, and other important characters. You should assign the nonbreaking space to a key combination (I use “Alt 9”).

The nonbreaking space acts like a dab of glue. When you use it between two words, those words will always stay together. They won’t “wrap” at the end of a line.

Use the nonbreaking space in these situations:

1. After the right-hand parenthesis that encloses numbers in in-text enumerations. This will prevent the parenthetically enclosed number from staying at the end of the line by itself.
2. Between the section symbol and the numeral.
3. Between the paragraph symbol and the numeral.
4. After the words “Mr.,” “Ms.,” etc. (Although in briefs, you should avoid using “Mr.” and “Ms.” Just use the parties’ last names.)
5. After each period in a properly formatted ellipsis signal. The Bluebook specifies three periods separated by spaces. A fourth is added to end a sentence. Make sure these periods stay on the same line by putting nonbreaking spaces between them.
6. Between any other words or characters you think should stay on the same line.

10. Spaces between Sentences

This will stir up a hornet’s nest in most law offices. According to leading authorities, modern word-processed documents should use only one space between sentences. Consider these remarks of Matthew Butterick, developer of TypographyForLawyers.com and author of the book of the same name:

I have no idea why so many writers resist the one-space rule. If you’re skeptical, pick up any book, newspaper, or magazine and tell me how many spaces there are between sentences. Correct—one.

Gary Kinder, creator of “WordRake,” a new software program for legal writers, sends out informative writing tips each week. (You might want to visit WordRake.com and sign up for the free 30-day trial. That way you’ll be on their e-mail list and will receive Gary’s writing tips.) His latest tip recounts his days in a summer school typing class in high school:

Our typewriters came with “fixed-pitch” Courier font—an “i” took up the same horizontal space as an “m”—which made sense for those who engineered typewriters: shift the carriage the same distance with each keystroke. I didn’t know this then, nor would I have cared, but even typesetters at book and magazine publishers had long squeezed two lead slugs into the tray after a period. Typists merely mimicked traditional typesetting by twice hitting the space bar.

But about the time I learned to do that, typesetters in publishing were cutting back to a single space between sentences. They called it “French spacing.” It looked better. (Remember the French can’t serve raspberry sorbet without shaping it into a large, frozen dahlia.) Yet many years after that typing class, I typed the manuscript for my first book on a plastic, manual, portable Olivetti with a ribbon striped red and black, and I still left two spaces after each Courier period. Everybody did.

Although IBM in 1941 gave us the first “proportional-pitch” electric typewriter, which made a page look like it was printed rather than typed, not until the early 1970s did we start shifting to proportional-pitch fonts, first on a “Daisy Wheel” and, by the end of the 1980s, on the fly. With publishers dropping the second space and proportional-pitch fonts smoothing the blocky appearance of Courier, most of us began to [insert but one] space . . . after a period.

Debate continues (“rages” would be hyperbolic) over whether one space or two is more readable, but typographers agree that a single space between sentences makes the sentences work better visually.

If anyone cares what I think about spacing between sentences, I would use one and keep my sentences looking like they connect rather than float like little word archipelagos. The hardest part will be trying to convince your brain, a creature of habit, to send a different signal to your thumbs.

If your brain refuses and you continue to put two spaces between sentences, then, when you finish the document, do a global replace: search for [two spaces], replace with [one space]. As an added benefit, you will knock out those midsentence, two-space typos.

11. Documents by Committee

Many legal documents are the product of multiple writers. Unfortunately, some writers know how to use MS Word styles while others don’t. Some writers follow some conventions (indenting the first line of a paragraph) and others follow the opposite convention (no indentation of the first line). Some use Times New Roman. Others use different fonts.

Make sure these documents go through an experienced word processor who can apply uniform styles and fonts.

Otherwise, you’ll produce a visual nightmare.

And, as I advised above, you should purchase Word 16 for Dummies and learn how to use styles. Once you do, you’ll never go back to the old way of using the “Normal” style for everything you type.

Check Out This Website

Matthew Butterick developed the website TypographyForLawyers.com and wrote the book of the same name. I highly recommend both. Here’s what Bryan Garner has to say in the “Foreword” to Typography for Lawyers: “If Matthew Butterick didn’t exist, it would be necessary to invent him.”

If you follow Butterick’s rules on document design, your writing will beckon your readers. As it stands right now, most legal writing is the stuff of nightmares. It’s ugly and scares readers away.

Endnotes

1. Bryan A. Garner, The Elements of Legal Style 80 (1991).

2. Id. at 116–17.

3. Id.