AppellaTech: Fonts

by Derek D. Bauman

It's no secret that appellate lawyers, on the whole, are a nerdy bunch. No doubt there are exceptions. Sure, it has been said that Warren Harris is the George Clooney of the Houston appellate bar,1 but it remains true that there is a disproportionately high concentration of bookish introverts among our ranks. (I do not claim to be an exception.) That is why, when I came up with the idea to discuss fonts in an article, I decided this was a group that would indulge me on such a particularized topic.

Until quite recently, the default font for Microsoft Word was Times New Roman. Because it was the default, it became ubiquitous. It has also become the object of much scorn. Personally, I do not share this view. While I don't intend to sing its praises, I find it to be a perfectly functional font.

Naturally, there are some people who care very much about the use of fonts in various contexts. Google recently updated the typeface for its logo. And I have no objection to paying careful attention to the use of fonts in appellate writing. I just feel that there are quite a number of other things that take precedent in evaluating what makes a good, persuasive brief. I think of it this way: the brief that loses on the merits when written in Times New Roman but wins when written in a more stylish font seems like an exceptionally rare brief. You have to be right on the cusp of persuasion when the font you use in your brief is what puts you over the line.

The key idea there, though, is winning or losing on the merits. I expect most would agree with me that a font choice is not likely to have that large of an impact in that circumstance. The place where it is more likely to have an impact (I would hazard to guess) is where your goal is to have the court show an interest in your issue, such as in a petition for discretionary review. In that scenario, it seems that choice of font could have at least some impact on the favorability shown towards your brief and, hence, your issues. But again, this strikes me as more of an on-the-fringes influence.

Another argument for using a font other than Times is a sort of marketing or branding of the attorney or firm. If the attorney always uses the same distinctive, aesthetically pleasing font, the font itself can become a symbol of the reputation of the lawyer. I can see the argument for this. In order for this to work, though, you have to have enough volume of work before some court that the distinctive font gets associated with you. For attorneys who don't file briefs with enough frequency to become individually known by a court, this would seem to produce less of a benefit. Also, it probably helps that the court have a positive view of you. Otherwise any persuasive effect of the distinctive font could be a net negative.

It's worth noting that some courts count themselves among those that care a lot about fonts. The Supreme Court of the United States requires you to use a font "in Century family (e.g., Century Expanded, New Century Schoolbook, or Century Schoolbook)." The Seventh Circuit has a lot of thoughts about fonts. The Fifth Circuit is more open to the font you use. See Fed. R. App. P. 32(a)(5)-(6) & 5th Cir. R. 32.1. The Texas appellate courts are also more permissive. See Tex. R. App. P. 9.4(e).

To the degree you are interested in picking a font other than Times for your legal writing, there is a book devoted to helping you do just that. Typography for Lawyers by Matthew Butterick. (I'm going to venture a guess and say that most of the attorneys who have bought this book are appellate attorneys. Like I said, certain examples notwithstanding, we are a bunch of nerds.) You should be aware, though, that if you pay for a license to use a specific font (that is, if you want to use a font that is not already on your computer and is not free to the public), you may need to check the licensing agreement to make sure that your normal use of fonts in your practice does not violate the licensing agreement.

If you want to stick with the bundle of fonts already on your computer, but want to switch to a font other than Times, Garamond is a good, readable font. Book Antiqua, Bookman Old Style, and Century are also good fonts. These are all "serif" fonts, as opposed to "sans-serif" fonts. A serif font has embellishments at the ends of the letters. A sans-serif font uses lines without embellishments.  (This article is written in a sans-serif font.) When Google switched the font for its logo, it went from a serif font to a sans-serif font. The reason for this presents a conundrum for appellate lawyers today.

A serif font is understood to be more readable on printed paper. A sans-serif font (such as Arial or Verdana) is understood to be more readable on a computer screen, especially on a small screen that you might find on a smart phone or tablet. (This is why Google, being a creature of the internet, went the sans-serif route.)

I think you see the conundrum. Many of the justices on the Supreme Court of Texas use iPads to read briefs. The Fourteenth Court of Appeals is paperless. If the justices are reading your brief on a smaller screen, this is some argument for using a sans-serif font. But if the justices are reading a printed copy of your brief, a serif font might be perceived as better. I have no particularly good advice to offer on this point other than to guess that the sheer inertia of the continued use of serif fonts shows that they should continue being used unless or until some judges start publicly calling for sans-serif fonts to be used.

If any of this leaves you in doubt about which font to use in your writings, perhaps a good fallback guideline is the idiom, "Imitation is the sincerest form of flattery." When in doubt, find out which font the court you are before uses, and use that font in your briefs. The Supreme Court of Texas and the Court of Criminal Appeals of Texas use Times New Roman for their opinions. So do the First Court of Appeals and the Fourteen Court of Appeals. The Fifth Circuit uses Century Schoolbook.

1^ Granted, this was said by me. Right now. In this post. But the point remains that it has been said.