How to cite Notorious B.I.G. (and other recordings)

Let’s say you want to quote Bob Dylan’s lyrics in a brief. (You wouldn’t be the first.) If you do, you’ll want to get the citation form right. You could look it up in the Bluebook (19th ed., Rule 18.7.1) or your ALWD Guide to Legal Citation (5th ed., Rules 28.3–28.5). Or you could just imitate Judge Don Willett of the U.S. Fifth Circuit, who cited Notorious B.I.G. in footnote 8 of this recent opinion.

For briefs, cite a single by artist name (plain type), song name (italics), and parenthetical with the recording company and year of release. To cite a song on an album, put a comma after the song name, followed by “on [album name]” in italics. Thus, for a brief:

R.L. Burnside, Shake ’Em On Downon Too Bad Jim (Fat Possum Records 1994).

If you’re writing for a law-review article—or if you want to be like Judge Willett, put the artist’s name and album name in large and small caps instead of italics.


No reasons for judgment? Here’s what you do.

Q. Let’s say that a trial court renders an appealable judgment against your client. You want to appeal, and you want the record to include the trial court’s written findings and reasons for judgment. So you file a timely request for written findings and reasons under La. Code Civ. P. art. 1917, but the trial court fails to issue written reasons. What do you do?

A. “[T]he proper remedy for a trial court’s failure to provide written reasons for judgment, when a timely written request to provide reasons has been filed, is by writ or a motion for remand.” Wooley v. Lucksinger, 2009-0571, p. 75 (La. 4/1/11), 61 So. 3d 507, 570; see also id. n. 160 (collecting cases).


Free CLE stuff for “Bridging the Gap” participants

This morning, I gave my semi-annual presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are the bonus materials that I promised:

Below are links to downloadable PDFs of sample appellate briefs and pleadings. For reasons stated during the seminar, please do not follow these slavishly; the rules may have changed since these were written.


Louisiana appellate CLE at Loyola

Setting precedentsIf you’re looking for appellate CLE in New Orleans, then check out Setting Precedents, a two-day appellate CLE seminar to be held on May 31–June 1 at Loyola Law School. It offers 12.5 hours of CLE, and the organizers have applied to the Louisiana Board of Legal Specialization for accreditation as specialized appellate CLE. I’ll be speaking at the seminar, giving a one-hour presentation on using structure and grammar to empower your writing. To see the full lineup and to register, follow this link.


One space or two? Too much ado.

After my recent post about putting only one space (not two) between sentences, a friend pointed out a recent article in Attention, Perception & Psychophysics. According to the article, the authors (Rebecca L. Johnson, Becky Bui, and Lindsay L. Schmitt) did a study about this subject. Here’s the abstract:

The most recent edition of the American Psychological Association (APA) Manual states that two spaces should follow the punctuation at the end of a sentence. This is in contrast to the one-space requirement from previous editions. However, to date, there has been no empirical support for either convention. In the current study, participants performed (1) a typing task to assess spacing usage and (2) an eye-tracking experiment to assess the effect that punctuation spacing has on reading performance. Although comprehension was not affected by punctuation spacing, the eye movement record suggested that initial processing of the text was facilitated when periods were followed by two spaces, supporting the change made to the APA Manual. Individuals' typing usage also influenced these effects such that those who use two spaces following a period showed the greatest overall facilitation from reading with two spaces.

Unfortunately, to read the article itself, you have to shell out $39.95, which I wasn’t willing to do. (You can buy Matthew Butterick’s Typography for Lawyers for only $30.) Fortunately, I found this blog post in Lifehacker, where Nick Douglas did the homework.

Long story short: The font that Johnson et al. chose for their study was Courier New, a monospaced font that replicates a manual Underwood typewriter. The two-space convention is a vestige of the typewriter days, when everything was monospaced. This news just in: no one outside of prison writes a brief or any other court document on a manual typewriter using a monospaced font. For a few decades now, we’ve all had computers, and our documents have been written in proportionally spaced fonts. So as I said, “Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence.”

One more absolute rule for typography: No underlining. That will be the topic of a future post.


Only one space after sentences. Not two—not ever.

While on the subject of typography, here is an absolute rule, not subject to serious debate: Unless you’re banging out your briefs on an Underwood manual typewriter, put only one space—not two—between the end of one sentence and the first letter of the next sentence. On this point, the authorities are unanimous:

“Use even forward-spacing in your documents: one space between words and one space after punctuation marks (including colons and periods).” Bryan A. Garner, The Redbook § 4.12 (2013).

“Some topics in this book will offer you choices. Not this one. Always put exactly one space between sentences.” Matthew Butterick, Typography for Lawyers 41 (2010) (emphasis in original).

“A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.” The Chicago Manual of Style § 2.12 (15th ed. 2003).

Space between sentences. In typeset matter, one space, not two (in other words, a regular space), follows any mark of punctuation that ends a sentence, whether a period, a colon, a question mark, an exclamation point, or closing quotation marks.” Id., § 6.11.


Why I left-justify rather than full-justify

Many brief-writers use fully justified text, so that the text lines up with both the left and right margins. I don’t. When I make the typography decisions, I use left-justified or left-aligned text, with a “ragged-right” margin. This is not a matter of personal preference. It’s a matter of readability. If the text is generated by a word processor (e.g. Word, WordPerfect) rather than professionally typeset, left-justified text is easier to read because it avoids odd gaps between words. But don’t take my word for it. Consider these authorities:

“Except in the hands of a skillful typographer, fully justified text can be harder to read than unjustified (‘flush-left’) text. This is always true for office documents, and especially when they are unhyphenated as well. Forcing the text to both margins may result in lines with word spacing that is too wide or, worse, unevenly distributed across the page.... Setting the copy flush left has its own advantages, too: the uneven right margin gives visual clues that help the reader find the beginning of the next line. Readers don’t lose their place in the copy as often.” Bryan A. Garner, The Redbook 92–93 (3d ed. 2013).

“In my law practice, I almost never justify text. Why’s that? The justification engine in a word processor is rudimentary compared to a professional page-layout program. I find that word-processor justification can make text look clunky and coarse. Left-aligning the text is more reliable.” Matthew Butterick, Typography for Lawyers 136 (2010).

“For desktop publishing, then, the choice should be different. According to some experts, keeping the text left-aligned affords the greatest legibility because there is no adjustment needed to word spacing and because the resulting ‘ragged-right’ margin adds variety and interest to the page without interfering with legibility.” Ruth Ann Robbins, Painting With Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents:, 2 J. ALWD 109, 130 (Fall 2004).

“Do not justify your text unless you hyphenate it too. If you fully justify unhyphenated text, rivers result as the word processing or page layout program adds white space between the words so that the margins line up.” U.S. Ct. App. 7th Cir. Requirements and Suggestions for Typography in Briefs and Other Papers.


Sanctions for frivolous appeal under FRAP 38

Under Fed. R. App. P. 38, a federal appellate court may award damages for a frivolous appeal. How bad does an appeal have to be to incur Rule 38 sanctions? The U.S. Fifth Circuit answered that question in depth in Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988). In that case, the appellant’s counsel filed a brief that “cite[d] only two cases, and fail[ed] to explain even those two.” Id. at 813. The brief also failed to address any of the controlling authorities cited in the lower court’s judgment. Said the Fifth Circuit, “This is poor appellate practice and an abuse of the appellate process.”

The lesson for the rest of us: don’t ignore adverse controlling authorities—especially when they’re cited in the trial court’s reasons for judgment.


Be a writer

Twice a year, I speak about appellate practice at a CLE seminar for newly sworn-in lawyers. One thing I continually warn them against is using someone else’s brief or writ application as a model. There are two reasons for this advice: (1) The model may not follow current court rules. (2) Following form like this tends to preserve bad legal writing. Today I can cite Mark Herrmann as a supporting authority for this advice. In a recent blog post at Above the Law, Mark tells this story from his early career:

It took a while for me to develop a sense of comfort when I started working at a small firm in San Francisco. I didn’t know how the quality of my written work compared to the quality of the written work of other new associates at the joint. (In fact, in my first week at the firm, I made the mistake of using a brief filed a few months earlier as a model for a brief that I was working on. When the partner told me my work was nothing special, I showed him the model I’d worked from. He explained an important lesson: Your obligation is never to recreate what we did last time; your obligation is to do the best you can do.)  


Appealing consolidated cases in federal court

Let’s say two civil actions in federal court are consolidated according to Fed. R. Civ. P. 42(a). A final judgment is entered in one of the consolidated cases but not the other. Is that judgment appealable? Yesterday, the U.S. Supreme Court answered “yes.” See Hall v. Hall, No. 16-1150 (Mar. 27, 2017). The Court reasoned that consolidation does not merge the consolidated cases into one civil action; instead each case retains its identity as a separate civil action.