This article originally appeared in the Daily Journal on May 28, 2019.
The Judicial Council recently floated proposed changes to the rules of appellate filings in the California Supreme Court and courts of appeal. Among other changes, the proposed rules outright ban Times New Roman. Now is the time to have your voice heard — the Judicial Council is accepting public comment on the proposed new rules until 5 p.m. on June 10, 2019, on its website or by email at firstname.lastname@example.org.
As an appellate practitioner who recently retired after 40 years as a writs attorney in the 2nd District of the California Court of Appeal, I welcome the goal of having more standardized state-wide filing rules, which currently vary district by district. But there are some significant flaws in these proposals, which take rigid conformity a step too far.
The most striking change is to the rules on typeface. When you read and write for a living, staring at words on a screen day in and day out, their style takes on more importance than one might expect.
The current appellate court rule expressly requires a roman font style and, within that style, permits “[a]ny conventional font [that is] proportionally spaced or monospaced.” The proposed rule would change this to require any “proportionally spaced serif face” — dropping the option to use monospaced fonts. So no more faux typewriter-type briefs in the numbing Courier!
But the bigger change is that the proposed rule explicitly rejects one font by name: the venerable Times New Roman. The rule is rather strict: “Do not use Times New Roman.” This is a complete reversal from the current rule, which suggests Times New Roman as a potential font to use.
As someone who labored as a writs attorney in the Second District for nearly 40 years, I was used to Times New Roman. Yes, it was every day, all day long, but Times New Roman is far older than that: in 1929, typographer Stanley Morison developed Times New Roman for Times of London, and it later became ubiquitous as the original default font in Microsoft Word. It always got the job done and wouldn’t have that staying power if there weren’t something great about it.
Some people have long hated it. Matthew Butterick’s book Typography for Lawyers, for example, says that “[i]f you have a choice about using Times New Roman, please stop.” Butterick dismisses the use of Times New Roman as a “lazy submission” to “the font of least resistance.” “Times New Roman is not a font choice so much as the absence of a font choice,” Butterick deadpans, “like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.”
Despite those criticisms, nowhere is the font marked as unreadable. Indeed, Butterick admits, “Objectively, there’s nothing wrong with Times New Roman.”
An even bigger problem with the Judicial Council’s proposed rule is that it gives only one example of an alternative appropriate font: Century Schoolbook. The Judicial Council explains that the font suggestion “comes from the Court of Appeal, Second Appellate District’s local rule, which seeks to promote readability.” The 2nd District’s local rule, in turn, cites The Leap from E-Filing to E-Briefing, Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs (2017) (The Leap)) by the Council of Appellate Lawyers of the American Bar Association.
I know something about this local rule. Just before I retired from the 2nd District, it adopted Century Schoolbook as its preferred font. At the time, several Court of Appeal attorneys criticized it as fussy and old-fashioned. They complained that, displayed at 13-point font, Century Schoolbook took up too much space on their computer screens. Frankly, it took me a while to get used to Century Schoolbook myself.
But I’ve come to appreciate Century Schoolbook since then. It is easy to read on portable electronic devices as well as on paper. The United States Supreme Court publishes its opinions in Century Schoolbook, and my firm, the California Appellate Law Group, has used Century Schoolbook as its standard font for years.
But it’s not necessarily the only good font, even if Times New Roman has been excommunicated. Not only are there other great serif fonts — like Georgia, Goudy Old Style, Book Antiqua, and Palatino Linotype — there are sans serif fonts to consider, too. The Leap gives an example of Arial, and flatly states that font is less readable than Century Schoolbook, but doesn’t explain why.
When I worked for the court, I found sans serif fonts pretty easy to read — often easier than fancy-looking old-fashioned serif fonts, and a nice break from them too. Years ago, one 2nd District justice always used Century Gothic, a straight-forward sans serif font, and I thought it was eminently readable. Alas, it did not catch on with the other justices.
The Leap suggests that serif fonts are easier to read than sans serif fonts on smaller electronic devices, but having read thousands if not tens of thousands of briefs over the years, I don’t fully buy it. The system fonts on my phone and tablet are all sans serif. Microsoft switched the Word default font from Times New Roman (a serif font) to Calibri (a sans serif font) in 2007, just as portable screens were catching on. Don’t we think Microsoft knows a thing or two about readable fonts on screens?
In fact, The Leap acknowledges that sans serif fonts are often easier to read, but goes on to say that improvements in technology have made serif fonts equally easy. Well… okay. But if they’re equally easy to read, it seems they should be equally viable under the rules.
Therefore, the first problem I have with the proposed rules is the unwarranted exclusion of sans serif and other excellent serif fonts besides Century Schoolbook. The Judicial Council should re-think its narrow recommendation.
The second problem I have is the rigidity with which the Judicial Council is rejecting Times New Roman — the font that I grew up on, that tens of thousands of practitioners are used to using, and that California trial court rules still prescribe. While the Judicial Council might want to encourage practitioners to think about other great options, the costs and complexity of such a switch are hard to justify for less technologically sophisticated practitioners, older lawyers, or those in practices that leave little time to play around with visuals. Why not let advocates decide for themselves what they think will be the most effective advocacy? Perhaps giving folks a push is okay, but for court staff, who read hundreds of briefs a month, a little variety might help keep their attention peeled.
The third problem I have with the proposed rules is that along with rejecting Times New Roman in favor of Century Schoolbook, the Judicial Council proposes all briefs use 13-point size for both body text and footnotes. The current rule requires that the size of the font “must not be smaller than 13-point.”
The proposed Judicial Council rule could have — and in my view, should have — expressly adopted a 14-point font option. The Leap reports that there is “substantial support” among judges for 14-point font. Federal appellate courts use 14-point font (usually Times New Roman) already. Certainly, 14-point type is easier on aging eyes. But the proposed rule not only doesn’t encourage the larger type-size, it prohibits it.
While The Leap it doesn’t recommend a specific font size, it points out that the selection of font size is somewhat dependent on the font style. Some fonts are wider than others. Because Century Schoolbook is the wider font, 13-point Century Schoolbook can look as large as 14-point Times New Roman. So it’s fine if that’s the advocate’s font of choice, but given all the variables in play, why not let practitioners decide for themselves what a judge may find easier?
In the end, these are just proposals. There’s no way to know if they’ll be ratified. Nothing is written in stone — in any font.
But now may be your last chance to make your voice heard. If you love Times New Roman and want to rescue it from the precipice, or hate it and want to give it a final push — if you like the sans serif Helvetica or think it’s far too trendy — if your eyes can do with an extra pinch of text size or you think big fonts are silly — I encourage you to review the proposed new rules and submit your comments to the Judicial Council.
Sharon Baumgold is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. She spent nearly four decades as a lead writ attorney in the 2nd District of the California Court of Appeal in Los Angeles. Find out more about Sharon and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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