Some lawyers must really like the use of emphasis in a brief. They use it a lot. Often on every page, and sometimes for a paragraph or more.

By emphasis, I mean the adding bold or underline or italics to the font in a sentence or longer section of a brief in order to emphasize the importance of the text to the reader. The problem is the overuse of emphasis, and I’ll admit that I was once guilty of that offense. But I’ve modified my ways in recent years. I believe lawyers tend to overuse emphasis because, being lawyers, they believe almost everything they say in a brief is of high importance. While I still do believe in the use of emphasis, my years of experience has taught me that less is more effective. The use of emphasis on every page distracts the reader from the proper flow of the narrative argument and inevitably cheapens the effect and purpose for the use of emphasis.

The demonstration of italics and boldface

The demonstration of italics and boldface (Photo credit: Wikipedia)

Matthew Butterick, author of the dry but very useful book, “Typography for Lawyers” (2d ed. 2011), advises minimal use of emphasis in a brief. Actually, his opinion against the use of emphasis is even stronger than mine. For example, Butterick bluntly commands:

In a printed document, don’t underline. Ever. It’s ugly and it makes text harder to read.

He notes that like double spacing following the period at the end of a sentence (see my earlier blog post on this subject), underlining is simply a vestige of the typewriter age. Butterick then provides two rules for emphasis in a brief:

Bold or italic — always think of them as mutually exclusive. That is the first rule.

The second rule is to use bold and italic as little as possible. They are tools for emphasis. But if everything is emphasized, then nothing us emphasized. Also, because bold and italic styles are designed to contrast with regular roman text, they’re somewhat harder to read. They’re fine for short pieces of text, but not for long stretches.

Butterick calls lawyers who break these rules “overemphasizers,” a term that sounds like it came from the television comedy series Seinfeld, where an overemphasizer is akin to the “close talker” in “The Raincoats” episode of the fifth season. The overemphasizer lacks the social awareness that excessive emphasis does nothing but annoy the reader. Butterick gives some good advice — don’t be one of those people:

Nevertheless, some lawyers — let’s call them overemphasizers — just can’t get enough bold and italic. If they feel strongly about the point the’re making, they won’t hesitate to run the whole paragraph in bold type. Don’t be one of these people. The habit wears down your readers’ retinas and their patience. It also gives you nowhere to go when you need to emphasize a word. That’s no problem for overemphasizers, who resort to underlining bold text or using bold italic. These are both bad ideas.

Despite what may seem like a criticism of any use of emphasis, it does have a place in the text of a brief. The judges and law clerks or staff attorneys who read many briefs in a day do need to have the most important statements in a brief pointed out to them, lest it escape their attention given the demands on their time. I believe bold emphasis stands out better than italics when a page in a brief is being quickly scanned, and thus bold is more effective at providing emphasis than italicizing the text. I save italics for case names (rather than underlining), or an occasional “soft emphasis.” The reader of an appellate brief may have reason to have to return to your brief several times, perhaps quickly paging through it to find the one key point that will win the appeal for your client. Bold emphasis can help make that critical point easier to locate in a sixty or seventy page brief. But only when you don’t have emphasis on every page.

So don’t be an overemphasizer; don’t be one of “those lawyers.”

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