The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I thought I'd pass along this very interesting article by Judge Andrew J. Guilford, from today's L.A. Daily Journal. I think the heading style he suggests is functionally better in many ways, for the reasons he mentions. The risk, though, is that, because it's unusual and unfamiliar to many readers, it might be jarring and offputting to some, despite its functional advantages; so while I'd gladly use it in Judge Guilford's courtroom, it might be dangerous for lawyers to use unless they're confident that their readers prefer it.
1.0 A HEADS UP ON HEADINGS
1.1 Today's Heading Style is Broken and Needs Fixing
Judges and lawyers must deliver vast amounts of information fast and clearly. Headings are an important tool in this but often are awkward, archaic and uninformative. They need an upgrade, leaving the old style on the barn floor with horseshoe hammers and wagon wheel wrenches.
Consider a judge in the middle of a jury trial when defense counsel raises an issue concerning laches, and cites a page in a long opinion. The judge declares a short recess and rushes to her chambers to read the case. Immediately, an assistant says there's an important phone call needing a quick response, and a law clerk rushes up with an emergency ex parte matter.
The judge finds the cited opinion and locates the pincite, realizing there's not enough time to read the entire opinion. But the analysis at the pincite doesn't seem relevant—it discusses the defendant's delay, which doesn't seem to fit a laches issue. To get context, the judge checks the heading. Two pages earlier, she finds "vi. Laches," a typical oldstyle heading using Roman numerals. She scrolls back, wondering what subheading would have six subsubheadings. In a rush, she misses a heading, but finds "iv. Statute of Limitations" and "iii. Privilege." Finally, she comes to a heading "C. Damages." Now confused, with time running out, she sets aside the research to handle the phone call and ex parte matter. Her time was wasted because of inadequate headings.
1.2 A Great Tool: Hierarchical Headings with Advancing Modern Numerals
Now consider if the heading at the pincite said "4.1.6 Laches." This indicates a hierarchical system using modern numbers starting at "1.0." Our judge could quickly track the numbers directly to the subheading "4.1. COUNTERCLAIM DEFENSES." The appearance of "Counterclaim" would have immediately explained why 4.1.6 referenced the defendant's delay. Using such a hierarchical heading system makes it easier to track the flow of arguments in an opinion. The same is true for a lawyer's briefs. This efficiency alone justifies such a system.
Using this simple system reveals other more nuanced advantages. If a reference is needed to another section, it's more aesthetically appealing to write "See Section 4.1.6" rather than "See Section "IV.A.vi." It's more modern, and that might be the problem for some who prefer a dusty, archaic style believing that it denotes authority and dignity. But dusty dignity comes at the cost of efficient readability. And that's a cost a writer can't afford.
It's true that advancing modern numerals becomes clunky when extended beyond three digits (like 126.96.36.199), but the odd use of Roman numerals is unbearable at such lengths. And the awkwardness of a four-digit heading is a good reminder that the writing itself suffers when broken down beyond three headings and subheadings.
So why in 21st century America do we do as the Romans did MCM years ago? Improving readability by rejecting Roman numerals is obvious to those who can't determine the age of an old movie because the rolling credits describe the year with "Ls" and "Ds" whose meaning is as lost as Latin now is to most Italians. (If you know why a movie wouldn't be made in a year with a "D," you're likely a Phi Beta Kappa, Summa Cum Laude in Latin—and those two phrases in Greek and Latin might also be modernized.) Roman numerals also risk the meaning getting lost in translation. Witness the Indian TV news anchor recently fired for referring to Chinese President Xi Jinping as "Eleven Jinping." Or the reports of people referencing World War II as "World War Eleven."
Books on legal writing uniformly attack the use of legalese and bureaucratese. See for example Eugene Volokh, "Academic Legal Writing" 123 (4th Ed. 2010). Targets of these attacks include "impenetrable Latin and other foreign phrases that tempt even the best writers." Tom Goldstein and Jethro Lieberman, "The Lawyer's Guide to Writing Well" 119 (1989). Just as bad content results from Latin phrases, so bad headings result from Roman numerals.
Perhaps the days for Roman numerals are numbered. America's greatest sporting event at long last is embracing the 21st century: Super Bowl 50 will carry exactly that crisp, modern name. Apparently when you're selling bread and circuses (and anything else for $133,000 a second), "Super Bowl L" is a flub. Maybe judges and lawyers should grab that ball and run with it.
The American Psychiatric Association also recently rejected the Roman numeral craze in its "Diagnostic and Statistical Manual of Mental Disorders" (DSM). The DSM-IV has been replaced by the elegant DSM-5. Even style manuals are recognizing the benefits of modern headings. See for example Matthew Butterick, "Typography for Lawyers: Essential Tools for Polished & Persuasive Documents" 106-107 (2014).
Yet modern headings appear almost nowhere in judicial opinions. A quick search of federal cases reveals that around 2011, a district judge and magistrate judge in Wisconsin used the modern system. See, e.g., Executive Center III LLC v. Meieran, 823 F. Supp. 2d 883 (E.D. Wis. 2011); Bautista v. Village of Lomira, 2013 WL 2405443 (E.D. Wis. 2013). A district judge in Florida has, too. See Hillcrest Property LLP v. Pasco County, 939 F. Supp. 2d 1240 (M.D. Fla. 2013). I used it over my 30 years as a lawyer and I've used it since becoming a judge in 2006. See, e.g., U.S. v. Rosales, 516 F.3d 749 (9th Cir. 2008), Dealertrack v. Huber, 460 F. Supp. 2d 1177 (C.D. Cal 2006), C.K.E. Restaurant v. Jack in the Box Inc., 494 F. Supp. 2d 1139 (C.D. Cal. 2007). Perhaps this reflects that we four judges are missing something. Or maybe change is upon us, with more judges crossing the Rubicon and storming the barricades of outdated style.
1.3 A Great Tool: Headings That Inform
Beyond the importance of a helpful modern numbering system are headings that maximize the information provided. Our busy judge's problem would have been solved with a heading that stated, "Laches Bars the Counterclaim." It's good to have headings that generally define the issue, such as "Laches," but it's better to have headings that state the conclusion of what follows. At times that produces an inelegantly long heading, but it's worth considering.
2.0 THE SUPREME COURT'S "QUESTIONABLE" PRACTICE
The U.S. Supreme Court will have none of this modernity. Its headings are sparse, archaic and uninformative. Patent cases suggest modernity, but in a recent patent case involving heart monitors, Nautilus v. Biosig Instruments, 124 S.Ct. 2120 (June 2, 2014), at page 2131, the following heading dangles alone, perhaps indicating the section relates to something intravenous:
Why do this? Perhaps a commitment to stare decisis leads to the continued use of established style. Or perhaps the high court seeks dignity at the cost of readability. Or perhaps a heading without description gives the writer great freedom to wander down side paths. But a busy trial judge who might normally enjoy such meanderings might be irritated during a short recess when answers are needed.
Perhaps the Supreme Court should recognize the wisdom of what's been written in a recent book by Justice Antonin Scalia and Bryan Garner acknowledging "that headings are useful navigational aids." Antonin Scalia and Bryan A. Garner, "Reading Law: The Interpretation of Legal Texts" 221 (2012). Similarly, in another book, Scalia and Garner provide this revealing passage:
"Many court opinions dispense with captions for sections and subsections, relying on numbers and letters alone (I, II, and III; A, B, and C within each). Whatever the value of that practice in opinions (and even that is questionable), it's not a good approach for briefs. Since clarity is the all-important objective, it helps to let the reader know in advance what topic you're about to discuss. Headings are most effective if they're full sentences announcing not just the topic but your position on the topic: Not 'I. Statute of Limitations' but 'I. The statute of limitations was tolled while the plaintiff suffered from amnesia.'" Scalia and Garner, "Making Your Case: The Art of Persuading Judges" 108 (2008).
The established practice in opinions is indeed "questionable." Though not sitting in Rome, the Supreme Court insists on doing like the Romans did millennia ago, and avoids informative headings. Perhaps the Supreme Court should also cross the Rubicon with the rest of us.
Headings are helpful, and there are numerous ways to make them more helpful. A (too?) clever writer might even come to the end at heading "3.0," which is close to the "30" that means in journalistic copy: THE END. (And is also the number of Maury Wills, the greatest shortstop ever for the Los Angeles Dodgers, who belongs in the Hall of Fame.)