Big Type, Little Brief, But is it Better?

Well, Virginia sure knows how to rein in its talky lawyers.

The Virginia Supreme Court, like many other courts, has encouraged lawyers to shorten their briefs (no pun intended) to fewer pages but now they've forced the issue by mandating a larger typeface in all briefs, without changing the maximum page limitations.

Instead of the former 12 point size, the new rule change mandates a 14 point typeface. Heck, even the footnotes have to be in 14 point typeface.

What you used to be able to fit into 25 pages (when you used 12 point typeface) now would take 32 pages.

That means Virginia attorneys will be forced to hone their written arguments to a fine edge and a small word count. Strong arguments will push weaker arguments out of the appeal brief, purely because of the page limitations, but that's not necessarily a bad thing.

In front of a jury you might want to argue lots of different points but in front of an appeals court, which routinely gives great deference to trial judges and jury decisions anyway, you are probably better off focusing the court on a few of your strongest arguments and letting the weaker ones go by the wayside.

The downside is that novel and risky arguments will play out less often, even though they are often the arguments that force courts to consider different viewpoints, untried and unproven, that can move the law forward in the best interests of all concerned, and the law itself. A good example is the large, multi-defendant racketeering case that was tried in federal court in Cincinnati over many months in the late 1970's that resulted in several dozen defendants being convicted of several hundred counts of criminal activity. More than a dozen big name defense attorneys fought hard for their clients through the trial and on into the appeal. Amidst it all was a solo practitioner from a rural town who represented one of the small players in the racketeering case. At the court of appeals he was the only one to argue a very novel approach to the law which the court of appeals ultimately agreed with, reversing dozens of the criminal convictions on a legal argument that some of the best minds in criminal law thought was a waste of time.

If that attorney was forced to play by Virginia's new rules, he probably wouldn't have made the novel legal argument that ultimately won. Brevity can be important, sure, but there has to be room for fair argument too. Maybe Virginia has struck a good balance with their new typeface size rule. Only time will tell.

Will other courts follow Virginia's lead? Probably not very quickly. After all, nothing seems to happen quickly in the court system. But it's a start and the odds are that sooner or later it could happen where you are.

Meantime, you're probably better off at the appellate level if you take the Virginia cue now. One thing's for sure: judges will appreciate it and so will their law clerks.