Why does one of the nation’s most progressive states do its legal business in old-fashioned Courier?
istockphoto/globe staff illustration
From legalizing same-sex marriage a decade ago to its recent ruling on methods of selling electric cars, the Massachusetts Supreme Judicial Court often makes decisions that sharpen the law’s cutting edge. But if you actually take the trouble to read those decisions, you might think you’d taken a time machine trip 50 years backward.
The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.
As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.
“If the court asked, ‘So, would you like to stop using Courier?’ there probably would be a tsunami of, ‘Yes, please!’” said Susan Sloane, the director of Legal Research and Writing at Northeastern University School of Law.
Why does Massachusetts cling to Courier? The habit began with typewriters, of course, but its persistence in 2014 offers an illustrative window into the workings of the court, where deference to judges—and to precedent—governs things that have nothing to do with the law itself.
In the type world, Courier is what’s called a “monospaced” font, in which letters are squeezed or stretched to have equal width and spacing; for example, Courier adds a wide tail to lowercase “i” and squishes “w,” so they take up the same amount of room on the page. Most fonts used for texts today—including the one you’re reading—are “proportional,” meaning the spacing of each letter varies according to its size. These are easier to read, but didn’t work for typewriters, which were mechanically unable to vary spacing or the width of the metal type.
For decades, most appellate court briefs and opinions were produced on Courier typewriters, so they all looked the same. They also all had roughly the same number of words per page, because of the font’s uniform monospacing. So judges could conveniently and fairly set a page-count limit on their length.
With the advent of computers, lawyers began dabbling in different fonts that looked better—but also let them squeeze way more text onto the page. A 50-page brief might have the equivalent of 70 pages of Courier text in it. Many overwhelmed courts responded by passing rules requiring the use of Courier or a similar monospaced font.
In 1999, the Massachusetts SJC imposed a restriction in its Rules of Appellate Procedure, which govern the form of legal briefs. “Only a monospaced font is allowed,” that rule says, and Courier is the only one suggested. If there were any doubt as to why, SJC clerk Francis Kenneally points out, you can actually find a note in the rules explaining that it’s to prevent lawyers from sneaking extra text into the 50-page brief limit. (The rule doesn’t apply to the more egalitarian trial courts, which accept even handwritten suits, according to Michael Donovan, clerk of the Suffolk County Superior Court for Civil Business.)
The past 20 years have seen writing and typography advocates successfully pressing courts to modernize—not only in fonts, but in other typewriter holdovers such as double-spacing and in-line citations. A top advocate for better-looking court documents is Matthew Butterick, a Los Angeles attorney who’s also a Harvard-trained typeface designer. His blog “Typography for Lawyers” and 2010 book of the same name have been influential on many courts. He considers himself something of a Courier assassin.
“Have you ever seen a book, newspaper, or magazine printed in Courier? Never,” Butterick said in an e-mail. And for good reason, he said: It’s hard to read, and the written equivalent of “droning along in a monotone.”
Bryan Garner, editor-in-chief of “Black’s Law Dictionary” and a top authority on legal writing, served on a rules committee for federal appeals courts that pioneered proportional fonts as an option there 20 years ago. Garner considers Courier “the modern lawyer’s hair shirt—purposefully self-inflicted pain.” But when he pushed to change it, he was surprised to discover resistance from the most important players: “We got a campaign of federal judges saying, ‘We want Courier’....It was unbelievable,” Garner recalled.
Some lawyers are fond of it, too: “I like it,” said Thomas Carey Jr., an appellate attorney at Boston’s Collora LLP, who calls himself a veteran of the “typewriter age.”
Today, there are simpler ways to control the length of briefs, like imposing a word-count limit easily checked on word processors. Courier looks increasingly old-fashioned; Garner compares it to “powdered wigs.” Carey said that many of his peers aren’t fans of the font, but they’re used to obeying court rules, not questioning them.
Sooner rather than later, the SJC will have a chance to review the rules. Carey isn’t sure anything will change. He founded and chairs a Massachusetts Bar Association committee where appellate judges and attorneys meet to exchange ideas, and Courier has never come up, he said.
A big pro-Courier factor is that in the antiquated Massachusetts appellate system, most filing is still done on paper, which makes word counts hard to double-check. When all-electronic filing inevitably comes—pilot programs are underway—that will be a good chance to reexamine font rules. Courier doesn’t look good on a screen, Carey says, and he hopes his personal favorite, the proportional Century Schoolbook, would be an option. But, he says, he also believes the court may say: “‘That’s what we’re used to doing,’ and keep doing it.”
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