Persuasive Legal Writing: The Importance of Document Design and Typography

What does the seminar cover?

Lawyers are in the business of producing persuasive writing, but they often neglect a key dimension: document design and typography. Legal documents are professionally published materials and their readers—clients, judges, or the public—expect them to be of the same standard as other professionally published materials. And while a well-designed document cannot rescue a bad piece of writing, it can make good writing clearer and more compelling.

Drawing on personal experience and professional typography texts, the presenters will demonstrate the importance of document design and typography to persuasive legal writing. They will cover the key text-level, paragraph-level, and document-level considerations, and will dispel the myths and bad habits that pervade this area. Sample documents will illustrate the difference that good design and typography makes to the inherent persuasiveness of a document.

Who should listen?

Litigation lawyers with across all areas of law will leave with tips for improving the persuasiveness of their legal document writing. 

PRESENTERS

The Hon. Justice John Bond (Judge, Queensland Court of Appeal)

Justice Bond began his career as a lawyer 34+ years ago, having set his sight on a legal path from an early age. Prior to being called to the Bench, he practised as a barrister. He was called to the Supreme Court of Queensland in 2015. 

Matthew Hickey OAM (Barrister, Level Twenty Seven Chambers)

Matthew has considerable trial and appellate experience in diverse practice areas, particularly in high-profile, reputation-sensitive litigation. He typically appears for or against multi-nationals, public companies, external administrators and government entities. He is named by Best Lawyers® in commercial law, insolvency & organisation, litigation, and construction & infrastructure law. Doyle’s Guide to the Australian Legal Profession ranks him as a leading counsel in commercial litigation & dispute resolution, insolvency & restructuring, and building & construction (Qld and Australia). 

Mohammud Jaamae Hafeez-Baig (Barrister, Level Twenty Seven Chambers)

As a commercial and public barrister, Jaamae's practice encompasses equity and trusts, civil fraud and asset recovery claims, contract law, administrative law, corporations law, consumer law, insolvency, and succession law. He has authored or co-authored 17 publications in international and domestic peer-reviewed law journals spanning private and commercial law topics. He is co-author of The Law of Tracing. 

Christopher Doyle (Barrister, Level Twenty Seven Chambers)

Chris has a broad commercial practice. Building on his time as a solicitor in commercial litigation and dispute resolution at a national Australian law firm he has an attuned sense of each client’s needs. He combines this client-centric approach with legal expertise drawn from acting for clients in a variety of industries

Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

Transcript

The Honourable Justice John Bond (JB): Good evening, my name is Judge John Bond. I am a Judge of Appeal at the Queensland Court of Appeal. I have been asked to chair this seminar on formatting persuasive legal documents. 

Our presenters tonight, to my left, are three highly credentialed members of the Queensland Bar.  In the centre, Matt Hickey. To my immediate left, Jaamae Hafeez-Baig. To my far left Christopher Doyle. Let me tell you a bit about them. 

First Matt. Matt has the misfortune of not realising a wonderful career at the Bar until later in life. He had a previous career as a recording artist and an operatic tenor. He was awarded the Commonwealth Centenary Medal for distinguished service to music industry in 2001 and the OAM for service to music and law in 2021. Others might have thought seeking a second successful career was greedy. He has an arts degree from UQ and from QUT a Masters in Music. He came to the Bar in 2010 and has developed an excellent reputation in commercial law, insolvency and organisation, litigation, construction & infrastructure, amongst other things. He has considerable trial and appellate experience.

Jaamae Hafeez-Baig had the misfortune of having spent a year with me as my associate, followed by a year as Justice Keane’s associate in the High Court. He holds a degree in law of First Class Honours and the University Medal from UQ, a Master of Laws from UQ and last but not least a BCL with distinction from Oxford. Jaamae has authored or co-authored papers on various topics spanning commercial and private law and the book ‘The Law of Tracing’ was published by The Federation Press in 2021. Jaamae’s commercial and public law practice encompasses equity and trusts, civil fraud and asset recovery claims, contract law, administrative law, corporations law, consumer law, insolvency, and succession law.

Chris Doyle has the misfortune of being the son of two barristers and the younger brother of another. Despite such an inauspicious background, he too was not put off a career in law. He graduated with Honours Degrees in Arts from UQ and Laws from QUT. He came to the Bar in 2020. He has a broad commercial practice that includes building & construction work, energy & resources, contracts, corporation, defamation and professional negligence, as well as a range of regulatory public and administrative law work. 

I am sure you will agree that all three of our presenters are well suited to present to you on this topic. 

Can I say, to start with, that I am very pleased to have been asked to chair this seminar because it is a subject which I long regard as being insufficiently valued. The fact that there are over 850 registered participants to this webinar suggests that there might be others that share that view, well done. Some of you though, even though registered to watch this presentation might wonder whether the subject of document design and formatting is important. Surely, one might ask, the proper administration of justice does not value style over substance. Of course, that is true, style does not trump substance. Nevertheless, style is important, but why? The answer is, of course, poor style to a network can be easily demonstrated repeatedly. It does not really matter whether it is an opinion or a written submission. Let us assume that its substance is terrific. Do you deliver it in the form of a single 10-page long paragraph, in single space, size eight point font? Well, of course not, no one will be able to read it. That style would seriously damage the substance. What would you do to improve the substance? Well, surely you would break the 10-page long paragraph because that will improve readability. For the same reason, you would increase the size of the font. Reading eight point font is hard. And, can we say, if your demographic is making presentations to judges who tend to be a certain age demographic, you might find that they find reading eight point font even harder than you do. For the same reason you probably number each paragraph because that would enable both internal cross referencing but will also assist you, or anyone else for that matter, who has to make references to your document. 

I remember when the Queensland Reports did not have numbered paragraphs and if you were making submissions to a judge by reference to the reports you would say “On page 73, at about point seven or point three or on the page” because there were no numbered paragraphs. That fortunately has changed. 

Can I indulge in a personal bias for a moment. You would certainly not use the digital form of numeration of paragraphs which can end up with paragraphs numbered 1.1.3.1 because everyone knows that form of numeration is an abomination. 

You probably add headings because they will operate as signposts to the reader about the structure of the document and what point or points you are addressing in particular sections of the document. Now, all of those style points would be improvements to the initial style choice, which diminished the substance of the document. All of those style choices will assist the reader to consume, to understand, the terrific substance of your document in the way you intend.

This evening presents important elaborations on that theme. It identifies various style choices which are open to you and explains why, in our presenters’ view, some choices are better than others. 

Just to make it interesting, to see if you are paying attention, you will find that the presenters are going to use the webinar voting feature to have viewers vote on a few different sample documents. I encourage you to do so. I had the advantage of a preview of the substance of the presentation, I am confident that you will find it stimulating.

Matthew.

Matthew Hickey OAM (MH):  Thank you Judge. 

We are going to cover a wide range of topics tonight. The first thing we wanted to address is, what is document design and typography? In 1964, in Jacobellis v Ohio, which must be one of the most quoted US Supreme Court decisions of all time, the possible obscenity of a film entitled, Les Amants – or Lovers for those of you who don't speak French. Justice Potter Stewart wrote “I shall not attempt to define the kinds of material I understand to be embraced within that shorthand description ‘hardcore pornography’ but I know it when I see it.” May I be so bold as to suggest that you may not yet be familiar with the elements of good document design but like Justice Potter Stewart you will know it when you see it. By the end of this presentation we hope that you will have the knowledge to be able to do it too. 

[Slide 3] Document design and typography is how we choose to present text in our documents. Of those we have surveyed…I should say the sample is restricted to our cynical chamber mates, who happen to be here in person to heckle us this evening, most think it consists solely of things like font, point size and margins. There is in fact much more to it. In this seminar, we will be covering the key text level, paragraph level and document level considerations of which you should be aware. But before that, we need to answer a question that I am sure many of you will be asking, which is why does any of this matter? 

WHY IS LEGAL DOCUMENT DESIGN & TYPOGRAPHY IMPORTANT?

MH: [Slide 4] As lawyers, our aim when producing a document is to persuade our reader. We cannot persuade unless two things happen. First, the reader devotes their time to reading the document. Second, the reader understands what we have actually written. Both of these things are more likely to occur when your document is well designed. A well-designed document draws the reader in and invites them to devote their limited time and attention to the document. A poorly designed document can subconsciously deter them and drive them to find excuses not to read. A well-designed document uses the nonverbal features of the document to assist the reader to understand the argument. A poorly designed document obscures our argument and impedes the reader’s understanding of it. 

Take a simple example, the judge has given us one a moment ago, an outline of submissions with no headings, only uninterrupted blocks of text. Not only does that document deter the reader from reading on, it undercuts the reader’s ability to understand our argument. On the other hand, a document that judiciously uses headings both invites the reader in and illuminates for the reader the structure of the argument. 

Will good document design and typography make a bad piece of writing great? Of course not. No outline of submissions, opinion or letter is better than its content. No amount of design and typography can fix bad writing. But that does not mean that design and typography is not an important part of persuasive writing. To the contrary, no amount of research and analysis is useful unless it is communicated effectively. An important part of communicating effectively is how the information is set out on the page. In other words, just as your document is no better than its content, it is also no better than its design and typography. If you ignore design and typography you limit how good the document can be and by extension how persuasive your arguments can be. 

There are other more pragmatic reasons to know a little bit about document design and typography. In the past, most legal documents were produced on typewriters and the design choices left to the writer were essentially only the width of the margins and the amount of underlining capitals. But so little room for movement, not knowing anything about design and typography, had limited negative consequences. But these days, word processing software gives everyone access to the sort of design choices that in the past were only available to professional publishing houses. There is therefore far greater scope for error. 

Similarly, in the days of the typewriter, our readers expected our documents to look like they were produced on a typewriter but our readers have now become accustomed to reading well designed documents. Nowadays, everything from magazines in waiting rooms to manuals for washing machines have become carefully designed. Our readers expect nothing less from us, if not subconsciously. But don't just take our word for it. There have been others who have written extensively on this very point. 

[Slide 5] We start with the United States Courts of Appeal for the Seventh Circuit in the Practitioner’s Handbook for Appeals, we have set out on the slide the substance of the point we wish to make there. [Slide 6] More locally, writing in Hearsay in the 2022, Justice Glenn Martin provided this helpful assistance, that [the documents] need not only to read well, but also to look good. There is certainly discussion to be had in the Lawyer’s Style Guide, written by Peter Butt. [Slide 7] An excellent book that we commend to you and you will hear a lot about tonight is Typography for Lawyers by American author Matthew Butterick, who I pause to observe is himself a reformed lawyer and a person who now spends his life designing fonts and advocating for good typography. Another document you will hear about tonight, with some extensive discussion, is Brian Garner's Modern English Usage. If you are unfamiliar with that text we certainly each commend it to you. 

Finally, in the words of Justice Scalia, and again Brian Garner, on making your case an excellent text which we commend to you, they say this, “When business consultants make a presentation to a prospective client they come forward with a professionally produced bound proposal. They understand that to get business they must persuade and the good visuals help. The same is true for persuading judges. “A brief” that's the language of America's usage of course, “that is ugly in typeface with crowded lines will not invite careful perusal. In the days when briefs had to be printed, counsel and the court could rely on a knowledgeable printer to produce a readily legible product. Now that lawyers can produce their own briefs, using desktop publishing software, the final product is often disastrous.”

Now to Christopher.

3 INTRODUCTORY RULES FOR LEGAL DOCUMENT FORMATTING

Christopher Doyle (CD): Thanks Matt.

[Slide 8] There are three introductory points we would like to make before we get into the meat of this topic. The first is, always follow the court rules. 

Court Rules for Document Formatting 

[Slide 9] Rule 161 of the UCPR sets out the requirements documents must have for the Supreme Court and the Court of Appeal. Margins must be no smaller than 10 millimetres on the top, bottom and right sides. A margin on the left should be wide enough so the court seal can be fixed and should be printed with a font type no smaller than 10 point. This is entirely consistent with the principles we will discuss today. 

[Slide 10] The Court of Appeal has its own practice direction, which is replicated on the screen, that describes the 12 point font in Times New Roman, or 11 point in Arial, and no smaller than single line spacing. 

[Slide 11] Again, the Federal Court has its own rules, and is replicated on the screen for you, which sets out which of the margins and the font to be used. 

[Slide 12] Of course, the High Court itself is very prescriptive in the way documents should be set out. 

Be Guided By Professional Publishing Standards 

[Slide 13] The second point we would like to make is that, whether we like it or not, the law is a publishing industry, and every law firm and barrister is a publishing house. Now readers, be they clients, judges or the public, expect our documents to be of the same standard as other professionally produced documents. For that reason, we should be guided by the standards of professional typography. There are plenty of books on this topic. As Matt already indicated, we strongly recommend Matthew Butterick’s Typography for Lawyers. 

MH: We don't take any commission by the way. I just think it is a good book.

CD: It is an excellent book. Much of what we say is sourced from that book and we cannot recommend it highly enough. 

Do Not Fear White Space 

CD: [Slide 14] Finally, as we cover the rules today, we will identify what is in fact a matter of personal preference and what is a typographical rule or custom. Some things are genuinely a matter of personal choice others are not but, as I said, we will identify them for you. 

One point that will crop up again and again today is do not fear whitespace. Personally, I struggled with this when I began, but I could never go back now. 

We are trained from law school to fit as much as possible on each page and leave as little space as possible. But we all know how unappealing and uninviting a densely packed page of text is. Ample whitespace on the other hand makes the page less cluttered which in turn makes it more approachable. Whitespace makes the page more inviting and increases the likelihood of your reader reading on. We will cover each of these in detail but ways to increase the whitespace are to increase the margins and the appropriate use of headings and lists. 

FONT

CD: [Slide 15] Font is probably the first design choice almost all lawyers consciously make. While it is probably not the most important it is still an important choice. It is also one of the considerations where you are most likely to be constrained by the court’s rules or your firm's own style guide. Subject to that, there are a few key rules that we say must be followed. 

The first is to use a serif font. Serifs, as you should be able to see on the screen, are those small horizontal or vertical strokes at the end of the lines that make up letters and numbers. Serif fonts, such as Times New Roman, have them. Sans serif fonts, such as Arial, do not. 

Our goal is to make the document as readable as possible and studies suggest that long passages in serif font are easier to read and comprehend than long passages in sans serif font. Sans serif fonts can work well in headings but they are difficult to read as body text and you will find that almost all professionally published materials take this approach. 

Secondly, you should use a proportional font, rather than a monospace font. In monospace fonts like Courier, every character is the same width. As already indicated, these were invented to suit mechanical requirements of typewriters. Whereas proportional fonts, like Times New Roman, the characters varied. Proportional fonts, I suggest, are easier to read and also take up less space on the page. [Slide16] A good example of that is on the screen for you. In both of these examples, it is the same text, same line spacing, and the same point size, but obviously, the proportional font on the right is far less space and, we would say, is much easier and more appealing to read. 

[Slide 17] The third rule is to use a professional font rather than a system one, where possible. Professional fonts can be purchased online, there is a wide variety. We are all fans of Butterick’s own font called Equity. Many of you will be familiar with that font, it is the font Justice Bond used. These slides, for example, are set in Equity and you can purchase it online. Again, we are not receiving any commission for this. 

[Slide 18] Fourth, and finally, if you must use a system font, choose wisely. Matthew Butterick has compiled a series of tables to view. List A, for example, has Century Schoolbook, Garamond and Palatino. Times New Roman is in List C at the very bottom. [Slide 19] For those of you wondering where Arial is, it is on the F List, being faithful to your credibility along with the Papyrus script. 

[Slide 20] For those of you on Zoom, you should have a window appearing on your screen very shortly. It should be relatively self-explanatory but we are asking you to vote between A, B and C. Which do you think is the most appealing font? We will give you 15-20 seconds to do that.

MH: The results are streaming in.

JB: Can I just say, this is very cool. I have not seen this before. We could do that in the Court of Appeal. Or maybe we can transmit what we are thinking to the court.

CD: Overwhelmingly, the vote is for C. 

MH: They passed the first test. 

CD: [Slide 21] The next consideration is the size of your font. This is pretty simple. Check the court rules, some specify, others don't. You should aim for between 10 and 12. As a personal preference, we recommend 11.

JB: I will counsel you not to go for 10. It is too small. I consume things on screens so I can make them bigger if I want but for those who work in hardcopy, like many at the Court of Appeal, apart from being against our Practice Direction, I would counsel you not to do it for judges. 11 or 12 is ok. 

CD: I will pass you on to Jaamae. 

CAPITALISATION

Mohammud Jaamae Hafeez-Baig (JH): Thanks very much Chris. 

[Slide 22] Capitalisation is our next topic. There are two types of capitals. There is all caps and small caps. 

We will start with all caps. The main rule is use them sparingly. Caps text is more difficult to read. Studies suggest that texts set in all caps read 20% slower, even quite simple sentences. Really, you should only use all caps in headings (as long as they are shorter than one line) headers, footers or captions. One pernicious habit that we sometimes see is lawyers setting clauses in contracts in all caps to show they are important and should not be missed. That, as you will have all typically experienced, often makes them harder to read and makes the reader more likely to skip them. 

[Slide 23] Small caps, which is the other type of capitalisation, are short capital letters designed to blend with lowercase text. They are slightly taller than lowercase letters but slightly shorter than regular upper-case letters. For example, you can see on the slide, the word capitalisation at the top is set in small caps. They are a way of emphasising text that does not involve bolding or italics or underlining. They can also be useful for headings and as a substitute for all caps. They are also much more pleasing on the eye but, like all caps, should be used sparingly. 

But, there is one thing I am asked to counsel against. Microsoft Word has a feature where it can generate its own small caps using the font settings menu which we have pictured on the slide. That will produce what we have called ‘fake small caps’, down the bottom, as compared to real small caps which we have set above that. Fake small caps is produced simply by scaling down the existing capital letters, you end up with letters that are too tall and vertical strokes that are not dark enough and inadequate spacing. True small caps can only be generated by actually buying the small caps version of your font. For example, if you go out and buy Equity font, which was recommended earlier, you will be given two files - the Equity font and Equity caps. Use Equity caps when you want to set something in small caps.

EMPHASISING

JH: [Slide 24] Our next topic is emphasising. There are a couple of ways of doing this. One of which is underlining. Underlining is a lingering habit from the days of the typewriter when the only way to emphasise text was to roll back the carriage and add underscores to the text. The rule is simple: do not underline, ever. It looks ugly, it makes text hard to read and takes up whitespace between the lines. That is why you almost never see underlining in any professional published document, never in newspapers, books or magazines. 

[Slide 25] The more useful way to emphasise text is bold and italics. There are a few rules here. One, never use both, only involve greater size. Two, choose one and stick to it, be consistent. Do not switch between them unless you have a good reason. Three, use them sparingly. Partly this is because if you emphasise everything, nothing is emphasised. But it is also because bold and italics is more difficult to read than regular text. Finally, if you are using a sans serif font, you should prefer bold which stands out more. If you are using a serif font, as we suggest, either or. 

LINE LENGTH & PAGE MARGINS

JH: [Slide26] That, I think, takes us to our second vote. This one, we will make you vote before we discuss the content, which may be a risky move. This is about line length and page margins. If you could, indicate which of those two documents you prefer. 

MH: We will leave it until we get the right result, Judge.

JH: About 45% for option A and 55% for option B. Those who picked option B, the majority, well done. 

[Slide 27] This is why we think option B is the more preferable of the two. Line length, as you probably know, is the distance between the left side and right side of the block text. It is measured in characters and ideally you should be aiming for 45-90 characters, including spaces, with an average of about 65. You can check that by highlighting a single line and bringing up the word count field for characters with spaces. That is shorter than most of the legal documents you will see day to day but it is the better option. There are a couple reasons for this. One, reading short lines is far more comfortable, your eye does not have to travel quite as far from one end of one line to the beginning of the next. You will realise, the chances of the reader finishing one line, moving back to the left side of the page, and the next line without reading that same line again. I can demonstrate this by asking you to think about the various professionally published materials that you read every day that maximise readability. Novels and other books have short line lengths to maximise readability and a little closer to home, this is the reason why most law reports have short line length. [Slide 28] This is true of the Commonwealth Law Reports and the Queensland Reports, as well as the Federal Court Reports and the appeal cases, just to name a few. 

We in fact, this is the sort of thing I do in my spare time, took a page and calculated the average line length, it was 65 characters - just bang on. 

How do you go about changing your line length? There are two ways. There is altering your point size, as Chris discussed, but really, that does not have a lot of effect on your line length. The far better way is to alter your page margins. Microsoft Word defaults to one inch which produces an appropriate line length if you are using monospaced fonts, as on a typewriter. It does not work for proportional fonts which you will recall have narrower letters. You should aim, we think, for about 1.5 inches or more, which is 3.7 or higher. But you should always be guided by the average line length on your page or using the word count feature. 

The usual objection to documents like this is that they look strange and there is too much white space, much of the page is empty. As to the first objection, documents with larger than normal margins look less usual than you think and it is very easy to get used to them. In any event, the corresponding increase in readability more than makes up for it.

As to the objection about much of the page looking empty, as Christopher told you earlier, white space is not something to be afraid of. If still not convinced, I ask you to think about this. Can you think of any professionally published document that uses single lines on A4 paper with one inch margins. I suspect you won't be able to which is because publishers will either use a smaller paper size, as in novels or law reports, or they use an A4 page but use columns to reduce the line length, as in magazines. 

[Slide 29] That takes us on to our next topic which is line spacing. Again, I think we are going to start with a vote. If you could indicate which of the three documents on the screen you prefer, we will give you 15 seconds. 

Right. We have 5% in favour of A – good, that is the single line spacing you should avoid. As to B and C, we have 44% for B and 52% for C. The majority is right, C is the better one. B is in fact double spaced. If we go on to the next slide, I will explain why.

JB: Is C 1.5? I’m a single line spaced person.

JH: [Slide 20] My advice is to avoid single line spacing. It makes the text dense and difficult to read. I also think you ought to avoid double line spacing which obscures the structure of your paragraphing, it impedes readability and makes it easier to accidentally skip lines. Although, it is good for drafting and proofreading. According to Butterick, you should aim for about 120-145% of your font size, which if you are using 11 points comes down to about 30.2-15.95 points. The best way to set that is by using the Exactly option in Microsoft Word. The reason for that is that Microsoft Word has a curiosity where in fact what it calls double spacing is not double spacing, it is about 233% and so on with single line spacing and time in half, so it would be best to specify it exactly. 

[Slide 31]

I will hand over to you Matt.

JUSTIFICATION

MH: Thank you. 

[Slide 32] I want to talk now about justification and I don't mean the justification for delivering this paper. I want to talk about the way in which we set up the text by reference to the margins themselves. 

The first point we would like to make is that text should almost never be centred. That is, it is useful for headings. It is useful for particular stylistic cues but block text should never be centred, it looks unprofessional and very difficult to read because of the uneven edges. 

[Slide 33] The next thing we will talk about is the eternal debate between left aligning and justified alignment. There is really no hard and fast rule about this, we can see it is a matter of personal preference. Although our view is that it should be justified rather than left aligned. Reason for that is that the left alignment creates a ragged right-hand edge, it is suggested by some that it is easier to read. We do not think that there is any really dependable research on that particular point. 

One of the criticisms made against justified line spacing is that the way justification works is in order for the left-hand margin and the right-hand margin to be lined up with one another the word processing program automatically creates whitespace between the words and what can happen if you do not enable the auto-hyphenation feature, which we have talked about, is that you get these sort of arbitrary white spaces between words which can really make a great deal of sense. 

[Slide 34 + 35] As we say in the slide, the way that you can come around that problem is by looking into the settings, within Word, go to Layout > Hyphenation > Automatic. What it does then is automatically split words where it is necessary to split them across lines. That is one thing we will allow you a bit of personal discretion, although we think you should follow us and do justification. 

[Slide 36] The next one we are much more concrete in our views about. This is, we recognise, a topic of some dispute between people. This is the question of whether one should insert one space or two at the end of a sentence. There were good technical reasons in times gone by as to why two spaces were necessary after a full stop. Those technical reasons no longer obtain. If you are using two spaces after a full stop at the end of a sentence, you are wrong. It is as simple as that. There are several reasons why one space is better but ultimately it is just a well settled rule now among professional typographers. The only exception is if you are foolhardy enough to use the typewriter style font by Courier and we do not recommend you do that in any professional context. 

There is a very entertaining section, if you are entertained by that kind of thing, in this book that we keep commending to you by Matthew Butterick. He goes through some common objections to the one space rule and collects some typographical authorities to show that, as we suggest, there is a rule about this. Again, the easiest way to verify it is to look at any professionally published book, any magazine, any newspaper, you will always, we suggest, one space after a full stop, not two. 

HEADINGS & SUB-HEADINGS

JH: Thanks very much, Matt.

[Slide 37] That takes us on to headings and subheadings. Headings are perhaps one of the most important parts of document design. It is difficult to overstate the positive effect that the judicious use of headings can have on a document. They are signposts to the reader, they make the document easier to follow and they also have the incidental benefit of helping the writer organise his or her thoughts. There are four heading issues we need to talk to you about. 

The first is that headings should stand out from the body text. Use bold for this, italics, all caps or small caps. But, as I said earlier, never underline. Aside from titles and subtitles, headings should be left aligned, not centred. Importantly, if your body text has paragraph numbers, the heading should align with the paragraph numbers as on the example on the right-hand side of the slide, it should not align with the body text, as on the incorrect example on the left-hand side of the slide. 

[Slide 38] The second rule is that headings should stand out from each other and the hierarchy should be clear. Headings only make it easier to follow a document if different levels of headings are clearly distinguishable and the hierarchy is obvious. We have put our recommended combinations on the slide. If you have gone out and bought a professional font, which gives you the option of real small cups, we suggest the one on the right. There are other possibilities. You might vary the point size of the headings but in our view that is not as distinct as using any of the other features and is unusual. But if you do that, be careful. A better alternative to decimal numbering is to use a combination of numbers and letters. Long-standing custom has a particular order which you will find, for example, in Queensland legislation, part 123, section ABC, etc. 

[Slide 39] The third rule is that you really should have no more than three levels of headings. If you go beyond three levels your document becomes difficult to follow, the subject matter gets fractured and you start to lose the benefits of having headings in the first place. 

[Slide 40] You ought to avoid what we call ‘floating headings’, those headings that have equal spaces before and after. Ideally, you should have more space before the heading than after so that the heading is tied to the text that it introduces. 

Finally, try not to orphan headings by putting them at the bottom of the page with the text starting at the next page. Microsoft Word has a feature called ‘keyboard next’ which will keep the heading with the text it introduces. 

That is over to you Chris.

LISTS

CD: [Slide 41] Thanks Jaamae.

For lists, there are really only two things to be aware of, they follow on mostly from what Jaamae said in headings. First, I should say, when we are discussing lists, we really mean how subparagraphs run from one to another.

Secondly, there is no excuse to ever use a bullet list, always use a numbered list. I appreciate we are using bullet points on the slide. The reason for this is self-explanatory, it is just much easier to identify the thing you are talking about by reference to a number than saying “halfway down the page” etc. There is only one acceptable way to set out subparagraphs, the suggested example is on the right. This really derives from the convenience of referring to the subparagraphs later. 

Like headings, you should aim for no more than four levels, or three sub levels. If you are exceeding that, then your document, but more importantly your point becomes, too hard to follow. 

FOOTNOTES

CD: [Slide 42] Footnote formatting. There are only two things to be aware of. First footnote text, not footnote number, must align with the indent of the body text paragraph, not the paragraph number. 

[Slide 43] Secondly, the footnote text should be in a size smaller than the body text. Where you are using 11 point font for body text we recommend 10 point font. There is an example on the screen for you of what we consider to be proper formatting. On the right, I should clarify.

[Slide 44] These are more examples of poor footnote formatting. I won't identify where they are from. 

BLOCK QUOTATIONS

CD: [Slide 45] The next point is about formatting block quotations. There is a simple recipe for this. There are two rules on the screen but there really there are three. You indent the block, you reduce the point size and you reduce the line spacing. This approach has several advantages. It avoids the need for entire blocks of text to be in italics or all caps which makes it very difficult to read. It avoids the need for quotation marks at the beginning and the end of the quotation. And it marks out as clear as to what is quotation and what is not. [Slide 46] That is [on the slide] an example again on the right as to how you should form quotations.

[Slide 47] We have an example for you to vote on as well please. 

93% for B. But as a heckle identified from the crowd, there is in fact a heading that says ‘After’.

I now pass on to Hickey to sum up.

SUMMARY

MH: [Slide 48] We have covered quite a lot of ground in the last fifty minutes or so. Can I now summarise. We have explained to you:

1.    Court rules: always follow them. 

2.    Font: use a serif font. Use a professional font, we recommend, or at least a suitable system font, although avoid Arial. 

3.    Point size: use 10, or up to 12, that is what we recommend. 

4.    Capitalisation: use all caps sparingly, if at all. Use small caps as an alternative to bold or italics. Never use fake small caps. 

5.    Emphasis: never underline for emphasis. Use bold and italic sparingly and never together.

6.    Line length: aim for a line length of 45-90 characters including spaces, with an average of around 65 characters.

7.    Line spacing: aim for 120-145% of point size. 

8.    Justification: your text should rarely be centred. Use left line or justified, we think justified is best. Always use automatic hyphenation if justifying.

9.    Spaces: use one space after a sentence. 

10.  Headings: should stand out from the body text and from each other. Use no more than three levels and avoid floating headings.

11.  Lists: use numbered lists, not bullet points. Use no more than four paragraph levels.

12.  Footnotes: the text should align with the body text. Use a font size smaller than the body text.

13.  Block quotations: indent the quote. Reduce the point size and optionally reduce the lines spacing. 

[Slide 49] Here is one last vote for you. How do you put all of that together? We are sure you will agree with us as to the right answer here but we do invite you, one last time, to vote to ensure that we have done what we set out to do here today.

I hazard a guess that the dissent we have comes from those that are with us in the room here. So, the results are, after all of that: 94% of people made the right choice, B. 6% of people, that is 11 out of 179, which almost precisely accords to the number of people who are in the room with us, have chosen number A.

PRACTICAL TIPS

JH: [Slide 50] Can we move on to a couple of practical tips. The first of which is, we are fully aware that most people don't find this subject matter quite as interesting as we do and have far better things to do with their time, as we are reminded constantly. We are not asking you to spend undue amounts of time on this. Most of what we have covered, in fact I think almost all we have covered in this presentation, can be pre-set in your Word documents by creating templates using Microsoft Word’s style features which we have on the slides. So, spend an hour setting up your templates, all your documents will be consistent, appropriately formatted and you will reap the rewards for many years to come. 

[Slide 51] Secondly, if you do go out and buy a professional font, such as Equity, which we recommended earlier, you really want to go into the settings in Microsoft Word, in the place indicated on the slide, and enable font embedding. What this allows you to do is, when your document gets sent to your less enlightened colleagues who have not gone out and purchased the font, they can edit it, they can render the document, they can save it as PDF and the font will work for them. They won't be able to use the font for their own documents but it solves the problem which you might otherwise have in sending your document beautifully formatted with a great one to people who cannot actually view it. 

[Slide 52] Finally, we mentioned some resources. We have set out a list on the page. There are some specialist texts for lawyers there and some general typographical texts. Can I recommend in particular, if you are not going to buy Matthew Brutterick’s book, his website contains pretty much the entirety of his book exquisitely formatted, an easy to access resource with checklists, guidance, whatever you might be after about typography. 

QUESTIONS

JH: [Slide 53] That takes us to questions.

JB: While Jaamae is looking at that, I might make a couple of comments, as someone who double spaces after a fullstop…

MH: You are wrong judge, sorry.

JB: I know, I can accept intellectually I should change but I have always typed that way and I am not going to try to relearn. 

I confess that I might have been the earliest adopter of the font that our presenters recommend. I would like to say that was a conscious decision based upon the appreciation of the intricacies of typography. And I did buy the book. When I read the author say that he designed something which is really good for lawyers I was interested and it was called Equity it was as simple as that. I used it on the bench up to the Court of Appeal where I confess I am constrained to adopt Times New Roman. 

I agree with almost everything that has been said. I personally hate line and a half, two lines, it takes too long to read but that is probably just me, everybody else loves it. I agree with everything else that has been advanced. 

What have we got in terms of questions Jaamae? I am going to let you operate. 

1.    Should one capitalise the first letter of a term such as ‘plaintiff’, ‘defendant’, ‘claim’, ‘statement of claim’ etc.? 

JB: Never. I hate caps. What is your answer?

HM: I agree with that. I do not think it is a proper noun in that context. I do not think there is justification for it.

JB: There is far too much use of caps.

2.    How long is too long for a judgment extract?

JB: Someone can give counsel’s perspective, I will give a judicial perspective.

MH: I think no more than is absolutely necessary to illustrate the point is the best answer I can give. If the judge is interested in going and reading the case, identifying where the passage comes from, providing a pinpoint citation is more than enough. Really, I would only include a particular section from a judgment in order to save the judge the trouble of going somewhere else to illustrate but I would err on the side of less not more.

JH: If you are going to introduce a blockquote in your submission, it is important not just to drop the blockquote out of nowhere. “In such and such case Justice Hughes said…”, you have to preface that quote by saying “Justice Hughes in X v Y said…” Put the quote in context, sandwich it and recognise that a lot of the time the first thing that people will skip if they are skim reading a document is a blockquote. So, if it is important, foreshadow what it is, what the block quote says and why you included it. 

JB: Do not be frightened to have emphasis added. The truth is, with any legal document no one reads footnotes. If it is important include the quote. But, a big slab, people go “Ugh, big slab. I’m not going to read it.” Introduce it in the way Jaamae suggested then bold print the good bit.

3.    Should highlighted or tabbed versions of submissions and authorities be handed to the bench? 

JB: It used to be in the old days that people said “Apologies, You Honour, I’ve handed up a copy that is highlighted.” I never understood that. Is the bit that you want me to read highlighted? Good, I will read it. If you have a secret message next to it in small print I will probably say something. Otherwise, I see no problem with it.

4.    Should chronologies be submitted as a separate document or in the body of the submission?

CD: Unless the chronology is strictly relevant I would not submit it at all. It depends how long it is really, if everything is relevant to the case you are arguing, depending on the size, depends on where I put it.

JB: It is detailed, so it depends how much you put in your submissions. One thing I learned as a judge which I did not know as counsel although I was reasonably experienced is it is surprising how hard it is as a judge to get on top of a case when the context is new to you. So, if you have not previously read it and just been given a submission, it is really hard to get it into your head. The presenter always has it in their head. As a judge, it is much harder than I thought it was. I find chronologies can be quite helpful but sometimes I do not use them at all. It is a judgement issue.

5.    Should italics be used in block text?

JB: I have got to say, in my judgments, if I am quoting things, and can I say I used to always write in 10 point, but the style guide in the Court of Appeal does not permit that so I have acquiesced. So, we use 12 point with quotes. With quotes, I used to hate quotes, I emphasise with bold rather than italics. I think it jumps out more but you might have a different view.

JH: It is also easier to read large stretches of bold, not that you should have stretches, but a sentence in bold is easier to read than a sentence which is italicised.

MH: I apprehend whether the question is whether the entirety of a block of text should be italicised. I think the answer to that is no. Italics should be used for emphasis or case names where it is appropriate. Vast swathes of text should never be in italics in my view.

JB: I completely agree with that. I have seen things with quotes, the whole thing is in italics, it is just awful, it is really hard to read. It is off putting when you do that.

6.    How often are these rules compromised?

JB: I used to do it all the time. Sometimes I forget. We say ten pages in the Court of Appeal. We take it pretty seriously about pages. If you come along and give us thirty pages you might find that it is not received by the registry. We are serious about it. That is a serious problem. If you start using line and a half you will find it is a significant problem fitting things in to ten pages. That said, using 10 point font and margins of five millimetres either side will not win many friends. I think there is a degree of compromise. I would compromise, I do and I did compromise on your line, you have either compromise and compromise on the your line and a half rule all the time, in a heartbeat.

MH: I tend to go for 1.25 when it comes to page limit if I am honest.

7.    What is the panel’s opinion of defined terms? I have always thought capitalised defined terms were clumsy but the practice seems to be ubiquitous.

JB: I used to, with everything I did at the Bar, put (“defined term”). We now don't tend to do that. Now, it tends to be (defined term). Never capitalise it, just define the term in bold print. That is how I would do it. In terms of, there are far too many defined terms used in things, judges get lost in acronyms. Acronyms are problematic unless it is a well-known one. Ones like BHP, no problem. But if you start using different acronyms, we start getting lost because…I should not speak for the whole judiciary, I start getting lost. So, you want to be careful about that. 

What is the recommendation of the presenters about how one does defined terms?

JH: My practice is the same as the judge’s. Bold, in brackets. I will add, one way you could do it is to define the term in small caps which is quite common in America. I do not think we are quite there yet as a profession.

JB: I think that would be awful. What do you think Chris?

CD: I tend to follow that rule as well but I have to say that I use quotation marks around my bold text. I just think it looks better.

MH: I disagree.

JB: Some people are suggesting in the chat that capitalisation to indicate a defined term is best.

MH: I think if there is any doubt about whether you are adopting a defined term or not, then make a judgment as to whether you use a capitalised letter. I confess, I do tend to adopt that approach sometimes.

JB: Yes, I try to reduce the amount of caps, other than for proper nouns and the start of sentences as best I can. Most defined terms I will do that, sometimes I won’t. I was just writing a judgment today, you have the plaintiff and applicant. How do you refer to that? Is convenient to refer the applicant in this court, the Court of Appeal, as the plaintiff because there are references in judgments and other discussions to using the name from the court below. So, I usually do that and I would not capitalise, but there were other cases where you would capitalise the initial there.

CD: I think as well, whatever you do there, is be consistent throughout the entire document.

JB: I completely agree with that. Especially with headings. Your recommendation, about picking three headings, I completely agree with so you always know when you look at it, that is a subheading or that is a sub-subheading. And if, as I have seen on a number of occasions, those rules are breached it does your head in because you are thinking “I’ve got this. This is the conception done by heading.” Then you get something else coming in which you would have thought must be a different topic but it is not but it has a different form of heading, what does that mean? As soon as you have got the consumer of the document pausing to ask that question out of the immediate comprehension of the message of trial then you have made a mistake. 

MH: I think your point is a good one Judge and it is one of the things that we have touched upon a lot, that is why does this matter? It matters because so often we are writing against deadlines and we are thinking about all sorts of things other than the ultimate reader of whatever it is we are producing. And so those sorts of considerations are about if I did not know anything about this document, I have never seen it before, what can I do to make it as easy as possible to digest for a person who is coming to it fresh. All of these things we have talked about and what the judge has just mentioned is all directed to that. Put yourself in the shoes of the person who will read this document and imagine what might make their life easier.

JB: I will tell you what I started to do in judgments. We all know that that a picture is better than a thousand words. I have recently worked out how to do screen captures. I have a judgment that has been published which was about a lease for a premises and I put a picture in the actual judgment. I am doing it in other judgments where I am putting in maps because if I tried to make it in words it would take far too long. 

8.    Does the panel have recommendations about colour?

JB: I don't have a problem with colour. It is hard to know whether the reproduction will actually keep colour.

9.    Are terms over defined?

JB: Yes. If you are referring to ABC Proprietor, do you need to define it as ABC? Absolutely not, just call it ABC, it is perfectly obvious, your reader is not an idiot.

JB: Jaamae tells me it is about time. I hope you enjoyed that as much as I did. I think it is terrific that we have people that have made an attempt to understand these rules in a professional way, and to convey to the audience some rules that are easy to follow. I think it is a great idea. Some of these decisions are aesthetic, you are entitled to have a different view but some of them are just plain sense, you have got to follow it.  I hope you as grateful to the presenters as I am.

Liability limited by a scheme approved under professional standards legislation