When writing motions and briefs, typography matters
Bryan A. Garner. (Photo by Winn Fuqua Photography)
Of all the easily fixed bad habits that pervade legal writing, perhaps none is more perniciously persistent than some brief-writers’ insistence on capitalizing each word of point headings—which, as you’ll remember, are the declarative sentences that divide the analysis in the body of a motion or brief.
This one decision—capitalizing point headings all the way through—causes a cascade of shortcomings.
Bear with me. This takes some unpacking.
Point headings present an advocate’s propositions, which should be informative. The age-old convention is to use them in the body of the brief between the main headings “Argument” and “Conclusion.” They’re dividers within the argument section.
The best tradition with these full-sentence headings is to make them both substantive and readable. They must say something. To be persuasive, they must incorporate reasoning.
They often require a because-clause to couple a reason with the conclusion being urged. The word because is among the most important words in any advocate’s vocabulary. For example:
This court should grant a temporary restraining order stopping Purvis from unfairly competing with American because Purvis signed an enforceable noncompete agreement when he sold his business to American.
At 29 words, that’s a decent point heading. Once you put four or five such headings into a table of contents, the whole argument becomes instantly plain to busy readers such as judges.
But there’s a contrary tradition, born of a primal urge to create typographic distinctions on the page. Deriving from the manuscript tradition, it’s called the hierarchy of scripts, which (in typesetting circles) mandates this:
In the era of typewriters, lawyers changed their second-level headings to initial capitals (small caps being unavailable). They tended to use all-caps topical headings at the first-level headings and initial-capped point headings at the second:
Note that the for in that second-level heading should be lowercase, as called for by the Bluebook, the Redbook and the Chicago Manual of Style. Here’s the rule from the Bluebook: “Do not capitalize articles, conjunctions or prepositions when they are four or fewer letters.”
But the folks who habitually use initial caps typically don’t know this rule. Hence they write this:
This Court Should Grant A Temporary Restraining Order Stopping Purvis From Unfairly Competing With American Because Purvis Signed An Enforceable Noncompete Agreement When He Sold His Business To American.
Did you notice how you averted your eyes? You couldn’t bear reading it because it’s repulsive. A sentence of more than a few words with initial capitals is unreadable. And five words there are incorrectly capitalized: a, from, with, an and to.
There’s an obstinate tendency to present point headings this way, violating the rules of the Bluebook, the Redbook and The Chicago Manual of Style:
I. Under California Law, When An Employer’s Policy States That New Employees Cannot Earn Vacation Time Until A Probation Period Ends, Employees Do Not Earn Vacation Time During That Period.
II. Bilsky’s Vacation Policy Is Lawful Because It States That Employees Begin Earning Vacation Time After 12 Months Of Service, And It Pays Terminated Employees For Vacation Time Earned After That Period.
III. Jensen’s Contention That The Policy Does Not Clearly Establish A Probation Period Is Refuted By The Policy Language When Read As A Whole, With Reference To Examples.
That looks ugly to anyone with even the slightest aesthetic sense. If the urge to keep initial caps is unshakable, the only solution is to shorten the point headings drastically:
I. Employees Do Not Earn The Vacation Time They Claim.
II. Bilsky’s Vacation Policy Is Lawful.
III. Jensen’s Contention Is Refuted.
Which means your “point headings” are now just conclusory assertions.
But wait. I’ve actually misstated what happens. I’ve suggested that the reasoning words have been lopped off. In fact, in the real world of initial-capping advocates, they’ve never been inserted at all. They’re so unsightly because of the initial capitals that they’re omitted from the start.
The primal urge is satisfied—never mind that the “point headings” (these hardly qualify) now say nothing useful or credible. And never mind that basic typographic rules (lowercasing short prepositions, articles and conjunctions) have been violated. For the average advocate, that’s the end of the matter. Who’s going to look at the table of contents anyway?
Well, plenty of judges do. Many say that you can tell the quality of an advocate just from glancing at a brief’s table of contents. From long experience, I too believe this.
So let’s back up and avoid starting with the preconceived notion that we need initial caps for point headings. Let’s reserve initial caps for properly short “topical” headings like “Statement of Facts” (lowercase of), “Summary of Argument” (lowercase of), etc. Let’s understand that “down-style” sentences are readable. They can be meaty and substantive:
I. Under California law, when an employer’s policy states that new employees cannot earn vacation time until a probation period ends, employees do not earn vacation time during that period.
II. Bilsky’s vacation policy is lawful because it states that employees begin earning vacation time after 12 months of service, and it pays terminated employees for vacation time earned after that period.
III. Jensen’s contention that the policy does not clearly establish a probation period is refuted by the policy language when read as a whole, with reference to examples.
Well-phrased point headings often run (as typeset in briefs) to four lines. They’re both attractively presented and highly informative.
In the body, they’re boldface. In the table of contents, they aren’t. What does a first-rate table of contents for a brief look like? There’s no space here to show the full-page look, but in the third edition of my book The Winning Brief, I show nine of them, all properly formatted.
I can feel resistance kicking in: For some readers, the primal urge for uppercase can be an insuperable obstacle. When I lecture about the subject, one or two lawyers will approach me and say, “But I use initial capitals!”
“Yes,” I respond, “and you might well sing out of tune.”
If you need the advice of typesetting experts, let’s ask professional typographers Mark Argetsinger (A Grammar of Typography) and Matthew Butterick (Typography for Lawyers). Here’s what they say:
Argetsinger: “Sentences are not titles and must never be typeset as such. A sentence makes a statement or an argument; while one scans a title, one reads a sentence.”
Butterick: “I am dismayed to hear that the vandalism continues. As I say in Typography for Lawyers, ‘Always avoid title casing [initial caps] because your point headings aren’t titles.’ Trust us on this. We’re making your life easier, your writing better and your typography classier.”
Three lessons to sum up:
1. Advocates who use initial caps in point headings are defacing their tables of contents.
2. That’s true even when they change the content of their “point” headings by making them pointless (conclusory)—as they tend to do.
3. An enlightened “down-style” is a pleasing substantive improvement. Your headings will start advancing your cause in more ways than you think: The content as well as the form of your briefs will be upgraded.
This story was originally published in the December 2024-January 2025 issue of the ABA Journal under the headline: “Point-Heading Problems: When writing motions and briefs that are pleasant reads, typography matters.”
Sidebar
How not to present point headings
I. Because Indiana’s Photo Identification Law Is Both Burdensome And Discriminatory Toward A Discrete Group Of Voters, It Should Be Subjected To Heightened Constitutional Scrutiny.
II. The State Cannot Sustain Any Of The Four Purported Justifications For The Significant Discriminatory Burdens That The Photo identification Law Imposes.
A. The Law Does Not Combat Voter Impersonation Fraud In Indiana Because No Such Problem Has Been Shown To Exist.
B. Given The Lack Of Voter Impersonation Fraud, The Law Cannot Properly Be Held To Combat Any Such Hypothetical Problem.
How to present point headings
I. Because Indiana’s photo identification law is both burdensome and discriminatory toward a discrete group of voters, it should be subjected to heightened constitutional scrutiny.
II. The state cannot sustain any of the four purported justifications for the significant discriminatory burdens that the photo identification law imposes.
A. The law does not combat voter impersonation fraud in Indiana because no such problem has been shown to exist.
B. Given the lack of voter impersonation fraud, the law cannot properly be held to combat any such hypothetical problem.
Bryan A. Garner is the author of many books, including The Winning Brief and The Redbook: A Manual on Legal Style. His greatly expanded 12th edition of Black's Law Dictionary was published in June.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
