Recently, legal-writing expert Ross Guberman surveyed thousands of judges about their legal-writing preferences. Judges at all levels—from state trial-court judges to U.S. Supreme Court Justices—weighed in on a variety of subjects, from formatting conventions to word choice, persuasive strategies, use of case law and treatment of facts. You can read Guberman’s report on some of the survey results here, or read on for my top takeaways from his report.
1. The nail in the coffin for citations in footnotes
78% prefer citations in the text
12% prefer citations in footnotes
10% don’t care
Thanks in large part to legal-writing Bryan Garner’s support for putting citations in footnotes, the long-running debate about whether citations belong in the text or in footnotes has lasted longer than it should have. Thanks to the Delaware Supreme Court’s penchant for putting citations in footnotes, I find that court’s opinions almost as excruciating to read as those ancient opinions that eschew paragraphing. Guberman’s survey should be the last word on this subject.
2. Not all judges are Typography for Lawyers fans
62% prefer two spaces after a period
21% prefer one space after a period
17% don’t care
35% prefer text to be fully justified
31% prefer a ragged right margin
34% don’t care
In Typography for Lawyers (which I’ve written about twice), lawyer/typographer Matthew Butterick recommends using one space after periods and using ragged right margins. I’ve adopted both recommendations. I’m surprised that most judges continue to favor two spaces after a period, since their published opinions undoubtedly use one space after a period.
3. Avoid typographical crutches
76% say that bold or italics for emphasis is okay (though many stressed that emphasis be used only occasionally,” and many prefer italics to bold)
11% don’t want any use of emphasis
13% don’t care
In my CLE course, “Powerful Writing Techniques to Help You Persuade Judges and Win Clients,” I warn against using typographical crutches to make your points. This is based on the advice in Making Your Case: The Art of Persuading Judges (“Don’t overuse italics; don’t use bold type except in headings; don’t use underlining at all”), and Benjamin Opipari’s cleverly titled To Go Boldly Without the Bold (and Italics and Underlining and All Caps). Instead, use the techniques for adding grammatical emphasis that are discussed in Opipari’s article.
4. Don’t write numbers two (2) times
73% prefer numbers to be written out just once (“three”)
<1% prefer numbers to be expressed with both the word and the numeral (“three (3)”)
26% don’t care
Thankfully, I come across very few briefs these days in which the author expresses numbers using both the word and the numeral.
5. Some words judges hate
In addition to eight common attack terms that judge find annoying, Guberman lists 34 other words, phrases and practices that judges most often say they dislike. I’ve discussed some of these in my legal-writing CLEs; others are just pet peeves of mine:
1. appellant/appellee (vs. parties’ names): one of the simplest ways to make your brief memorable is to use the parties names
2. prior to: use “before” instead
3. subsequent to: use “after” instead
4. utilize: use “use” instead
5. The instant case: use “this case” instead