Colorful Texas Lawyering

I ran across yet another brief filed in a Texas case—this time in federal court—in which the lawyer deliberately used color to set off particular text. (I'm not just talking about URLs that appear in blue because that's often the Word default, but that could equally easily be in black; this was a deliberate choice to use color to emphasize something.) I'd seen it several years ago in a state court brief as well.

Texas lawyers: Is this really common in Texas? (Other lawyers: Does it happen much in your jurisdiction, but I've just missed it?)

Comments

[Dr. Ed]

I think the bigger question is what do the rules of court say?

[Keith]

Yup. Seems like 10(a)(4) comes close, but no cigar.

(4) when filed by paper, be plainly written, typed, or printed, double-spaced, on 81/2 inch by 11-inch white paper; and

[Keith]

I wouldn’t try it in NY.

Rule 2101. Form of papers. (a) Quality, size and legibility. Each paper served or filed shall be durable, white and... The writing shall be legible and in black ink.

[Rev. Arthur L. Kirkland]

I thought you guys were color-blind.

[Noscitur a sociis]

The content of that brief is pretty good. The typography needs a lot of work.

[NToJ]

I’m in Texas, niche commercial litigation, 90% state court 10% federal. Mostly district court level but some higher. Have not yet seen this in any brief or motion.

[David Welker]

Color is fine if allowed by the rules. But this sentence is not:

"The Court should grant final summary judgment in favor of
defendant Thomas Retzlaff and against plaintiff Jason Van Dyke
on all claims because Van Dyke failed to comply with the
Defamation Mitigation Act."

Here is a better version:

"The Court should grant summary judgment because the plaintiff failed to comply with the Defamation Mitigation Act."

There is only one plaintiff and only one defendant. The plaintiff's name and defendant's name are both in the caption. If there are multiple plaintiffs and multiple defendants, and a motion only applies to a subset of one or either, then there is a need to be more specific. But not here. Use your brain.

The court is busy. Do not waste its time. THINK about what the court already knows and what it doesn't know and write accordingly.

This highlighted sentence comes after this:
"RETZLAFF’S MOTION FOR FINAL SUMMARY JUDGMENT—VAN DYKE’S FAILURE TO COMPLY WITH THE DEFAMATION MITIGATION ACT"

Why use --- here? Use the word FOR not ---. You are making the court think. The court's brain cells should be reserved for understanding your argument, not figuring out what some unnecessary --- signifies.

The highlighted sentence just repeats the title of the motion. Again, you are wasting the courts time. Just as the court does not need to read the plaintiffs and defendants names multiple times, it does not need to read the phrase "defamation mitigation act" multiple times before finally diving into your argument. In fact, because you have already abused the court's time right from the very beginning, they are probably going to expect you to be repetitive later in the brief, and the temptation to skim will be increased.

Oh, and guess what, the suspicion that the brief writer is going to waste your time is confirmed nearly immediately in the facts section. (i) through (x) includes the name Van Dyke over and over again. Why are you making the court read this name over and over again? This is an unnecessary tax on their time. Mr. Repetitive. That is repetitive. You are repeating yourself. Multiple times. Over and over again, even.

Now, a certain level of repetition is fine. But it should be used strategically. Not in an annoying manner. And not immediately. If I just read "defamation mitigation act" I don't need to read it immediately afterwards. You can have a little repetition to make the point sink in. But not like this.

If you are going to highlight something with color, it is because you want the court to remember it. You think the court is going to forget that this is a summary judgment motion? You think they are going to forget that the summary judgment motion is based on the defamation mitigation act? They aren't. Putting this in the title is sufficient. So, stop repeating yourself. And repeating yourself doesn't become cool just because the second time, you use color.

The better use of color occurs later in the brief. The admission is highlighted in blue. OK, this communicates to the court that this admission is going to play a big part in your argument.

But why the color blue? It is the same color as the links. It is hard to read. If you are going to use color, use a darker color that is easier to read against a white background.

Overall, my judgment is that this brief does not use color wisely.

I am not against color (if allowed by the rules) or anything else that will help the court separate the most important points from the supporting details. But you have to think about it. What are you actually trying to accomplish? If your brief turns into a freakin rainbow, you have failed.

[Beldar]

I have used lightly shaded backgrounds to set off key block-quotes on a handful of occasions. No judge or opponent, to my recollection, has ever commented on it.

But I can count on one hand the number of times I've seen other lawyers use colored text in briefs in the state and federal courts in Houston. I know of no local rules which forbid it.

I am seeing embedded charts, graphs, and photos somewhat more frequently these days.

[Beldar]

I have also used highlighter-style fluorescent yellow a handful of times to highlight a particular phrase.

If one is going to use color, one needs to be sure to pick a color that — if scanned in black & white — doesn't hinder readability.

[Stephen Lathrop]

Except in the case of electronic links for on-screen documents, there is no need for color in a formal typeset presentation, ever. Regard rules against color as superfluous. Colored type is a practice associated with hucksterism, where it has many uses. But why would someone intent on communicating written content with gravity, choose to associate it visually with techniques suggesting commercial appeals? It is a mistake to do it.

A rule against color is a sub-case of a broader rule governing typography: avoid superfluity. You don't need color. You have plenty of formatting tools to graphically model the structure of your argument, and to provide needed emphasis—in your fonts, in your deployment of spacing, and with choices among different weights and type styles in the same family.

Choose fonts for readability or legibility, according to the tasks required. Learn the difference. In general, serif typefaces are more readable, and used for extensive text. Sans-serif is more legible, and can often be deployed to deliver headline or call-out contrast with serif text. Extensive sans-serif text is not commonly chosen.

Note that some font families support more weights than others, even among the frequently prescribed font names, such as Times Roman, or Helvetica. More available weights are an advantage. They facilitate formatting on the basis of the smallest readily perceivable differences, which is desirable.

Most font families feature, at a minimum, a regular text version, a bold version, and an italic version. But some font designers expand that repertoire, featuring also a lighter text version, a heavier text version (which can be great for subtle emphasis, or understated headlines), and an extra-bold version (formal presentations might be advised to avoid extra-bold on the same principle as avoiding color). Likewise for the italics.

Even more choices are sometimes added. And that is before you get to the versions known as "condensed," typefaces. Anyone considering those should know they are less readable in large masses of text. (Sometimes lawyers seem to choose condensed versions for that reason, combining condensed type, small size, and reduced density contrast to discourage reading required disclaimers, etc.) Also be aware that purpose-built condensed fonts are usually notably superior to applying digital condensation to standard type. Avoid using digital condensation, or digital extension, for any text which must be read.

Used with care, and staying mindful of the rule to get as much ink off the page as possible, available extra font choices expand the ability to model content graphically. That can be worth keeping in mind when you equip your typesetting facility.

Note also that different versions of standard type designs, like Times Roman, can be found featuring so-called "large X-height," or, "small X-height." The terms refer to subtle differences in the proportions of lower-case characters as compared to capitals. Know which version you are using. Large X-height versions are more recent designs, which facilitate legibility at the expense of being less compact. A small X-height version could fit a bit more text in the same number of pages. Also, the small X-height designs often show different number sets, featuring below-the-line descenders on some of the digits. Those look a bit more formal, but distinctly old-fashioned. Between these two kinds of designs, most readers might not notice a difference without exacting side-by-side comparison.

Also, learn typographical usages, like getting your three kinds of dashes right, and when to use dashes with spaces, and when not (for instance, EM-dashes with spaces in justified type, but no spaces in flush left). Observe typographical niceties consistently, such as the customary use (or not) of periods in AM and p.m. Even if a usage is technically correct, think twice before following any rarely-used convention which might baffle your readers, for instance the custom in antique military usage of denoting noon as, 12 M.

Learn how to manage and scale superscripts. Be aware of the advantages, but also the hazards, of digital condensation and extension of type. If you have no notion what that means, don't experiment with digital modifications.

Learn to manage kerning, at least in more prominent headlines. Kerning is character-pair-specific adjustment of letter spacing, to optimize appearance. It is used more in headlines than in text, and more often in large headlines than in typical legal document headlines. Nevertheless, careful kerning can often improve appearance of a 12-point headline.

If you ever use centered type, learn to break lines of centered type to present a line – length pattern: short – long, short – long, etc. And do it while positioning line breaks to accommodate grammatical meaning. Try to keep phrases unbroken, don't let articles dangle at the ends of lines, etc. And do not leave the last line in such a pattern conspicuously short.

Use similar judgment while ending lines of flush-left type. Make your line lengths close to even, but regularly, short – long, short – long, and broken for grammatical sense, where possible.

Avoid widows and orphans.

The general rule, set forward long ago by graphics expert Tufte, is to get as much ink off the page as possible. A corollary is to achieve formatting by use of the slightest graphical differences which can readily be noticed. An objective is to make formatting model the pattern of thought you present.

To achieve any of that, there is almost never any situation where tools beyond standard typographical variations and spacing choices become necessary. Do the graphical minimum, carefully and consistently, to let your written content work at its maximum.

A final rule of typographic presentation is to do as much work as it takes to make it look as if you did no work at all. When a reader finds no detail to draw focus, or prompt reflection, "It could have been done that way, or it could have been done this way," then you can be confident that your written content will get all the attention, and your type will be working for you, as if by magic.

[Leaf's Chauffeur]

Nice. Definitely the medium of communication is also a method of communicating.

[Mike Breen]

I appreciate your excellent style manual, but respectfully disagree. See my comment below. Attorneys are persuaders, and technology gives us new avenues that help us avoid reifying the law.

[KenveeB]

I'm in Texas and practice criminal appellate law. I see a lot of briefs, and I've never seen one using color text. The only color I've seen is if someone includes a picture or table, and that's rare. Maybe people are thinking it's a good idea now that they're e-filing briefs instead of having to print them in color? I don't know, it seems bizarre to me.

[Bill Poser]

If this takes off, we will soon see objections from color-blind lawyers and parties.

[Mike Breen]

I've used colors in complaints and briefs, including appellate briefs, but that was sometime ago. The reaction in the Federal system in the District and Circuit Courts was generally hostile, and I got one or two butt-chewings. Have a look at James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002). I think there are several reasons for this. First, judges think this is an attempt to manipulate them. This ties in with the second point, which is that the judiciary perceives itself as deciding cases within a crucible of unadulterated reason. Colors, photos, and adjectives are perceived as an attempt to subvert the (sorry, Kant) critique of pure reason. I won't comment on the validity of this self-perception.

That said, I think that there is room for this in the future in the right case because the judiciary is more accustomed to technology than it was when I first tried this out. One Circuit judge told me most of his colleagues are reading briefs on their tablets. A brief with embedded links to photos, exhibits, etc. of record makes it easier for the judge to navigate the record.

From a persuasion point of view a writer ought to consider this because the psychology of color usage is well-known.

There is, of course, a risk of having a brief struck. The fix? File a motion for relief from the black-and-white rule with cogent explanations about how the proposed format will assist the court.

If we tread lightly in the early stages I think it will gain acceptance over time.