Modern serif typeface for a law firm

[Zivatar]

For typical legal writing that includes legal citations (e.g., briefs, issues memorandums, opinion letters, judicial opinions) full height lining figures make the most sense, even apart from tradition, and old-style figures don't make much sense. By the same token, for much "ordinary" text, old-style figures often make the most sense, even apart from the current vogue for them. Both the tradition of lining figures in legal writings and the vogue for old style figures in more ordinary text have sound reasons behind them.

Choosing between full height lining figures and old-style figures in varying situations should not be an arbitrary choice. In a typical English language novel or newspaper article, for example, text will ordinarily consist of lots of lower-case letters, a few caps (mostly at the beginning of sentences or in proper names), and even fewer numerals (as in dates, addresses, and the occasional reference to money). In such a situation, a short string of old-style figures will tend to "blend in" with the rest of the surrounding text, which is mostly lower case, with the normal mix of ascenders and descenders, and which contains relatively few caps and even fewer numerals. Using full height lining figures in such an instance would tend to emphasize the numerals in a string, much as using caps rather than lowercase would emphasize the letters in a string. Ordinarily, such emphasis is not intended, and the overall effect is aesthetically grating. So the current vogue of using OSF makes perfect sense in such instances, particularly if the typeface used has long ascenders and descenders.

In ordinary legal writing, on the other hand, numerals are much more frequent, because of legal citations. And, within a legal citation, which is where the vast majority of numerals occur in ordinary legal writing, the non-numeral characters are much more likely than in normal writing to be caps, descenderless lower case letters (esp. d, s, t, h), and/or italics (by legal convention, case names, treatise titles, and many other parts of standard citations, are italicized today, and were underlined in the days of typewriters). So the lining figures traditionally used in legal writing blend in much better with the surrounding characters, which in legal citations are very disproportionately likely to be caps, numerals, or descender-less lower case characters. And although typical citations aren't as long as they used to be, there are still plenty of "string" citations (citations to several different authorities that say the same thing) and parallel citations (multiple citations to different published versions of a single case), and so legal citations are still often ridiculously long. Indeed, America's preeminent legal writing guru, Bryan Garner, has for some years now been pressing lawyers and judges to remove all citations from the main text of their briefs and opinions, and instead put those citations in footnotes, to prevent citations from breaking up the flow of content in legal text. The idea makes perfect sense, but has not caught on, to put it mildly, despite Garner's considerable prestige and the obvious rationality of his argument. I'm sure there must be professions more hidebound than the law, but I can't think of any, and banishing citations to footnotes takes considerable effort, whereas legal readers are already in the habit of skipping over citations, so the disruption of the flow of the text isn't as great a problem for them as it might be for laymen.

Anyway, in legal citations old-style figures would tend to clash with the surrounding caps and descenderless lower case characters that dominate citations. And the strong legal tradition of using lining figures makes old-style figures look even weirder to ordinary legal readers.

So in novels, the principle of "invisibility" supports the use of old-style figures, whereas in most legal writing, the very same principle supports the use of lining figures.

I have never seen the newest Singer casebook that EK refers to, and know nothing about its typography. I'll take his word that it uses old-style figures. But I'd bet that that choice was NOT intelligently made by a skilled typographer experienced in setting American legal writing and aware of the centuries-old tradition of near-universal use of full height lining figures in that writing. More likely the decision was mindlessly made by somebody who merely intended to be trendy, without the tiniest understanding of when it makes typographical sense to use OSF, and when it doesn't.

That's not to say that when a lawyer uses lining figures that represents a typographically well-considered choice. For example, the United States Supreme Court by rule now requires briefs and other papers (except in cases where one side is pro se) to be "typset in a Century family ... 12-point type," and no Century family digital fonts have old-style figures available, as far as I know. So old-style figures are simply not an option for those who practice in that court. Other courts also require the use of fonts for which old-style figures either aren't available at all, or are only available at considerable extra cost. For example, Times New Roman is often specifically required by Court rules (it is in my local federal district court) and there are still a few holdouts that require courier or other monospaced serifed fonts (these were until recently the only commonly available computer fonts permitted by the rules of my state's state appellate courts).

My guess is that the Times New Roman font included "free" with Windows is now used by about 99% of America's lawyers of every stripe, from senior partners at Sullivan and Cromwell to solo practitioners in the sticks, for every legal document they create. If that font had default old-style figures, then no doubt we'd see lots of old-style figures in legal briefs and such. We likewise now see lots of small superscripted ordinals (ugh!) in legal briefs for no apparent reason except that since Word 2003 Microsoft Word has had small superscripted ordinals turned on by default, so that, for example, when someone types "10th," the "th" is automatically made small and superscripted. This no doubt happened because some unknown person near the top of the Word development team thinks small, superscripted ordinals are cool. Previous versions of Word (or WordPerfect, which used to be popular with lawyers, but which continues to lose what little legal market share it has left) used ordinary lower case as the default in ordinals, so that's all one used to see. You can bet Dan Rather wishes that Microsoft hadn't altered the ordinals default.

Sure, there are times when legal writing is much more like ordinary writing than it is like a legal brief or law report. For example, law firm propaganda aimed at lay audiences, as opposed to professional audiences, usually won't be larded with legal citations, as a legal brief or law report would, and may indeed look a lot like a novel or newspaper article in terms of frequency and spacing of caps, lower case, numerals, rarity of italics, and other typographically relevant dimensions. Moreover, such propaganda is more likely to be designed and/or printed by someone who is typographically more sophisticated than an ordinary lawyer or legal secretary. Similarly, for typographical purposes some kinds of lawyerly correspondence might also be more like a novel than like a legal brief. So I would certainly agree that there are occasional instances in which a typographically sophisticated lawyer might be well-advised to use old-style figures.

But for most uses by most lawyers, lining figures make the most sense, by a long shot, for reasons of tradition AND typography, and it's just plain dumb to use anything else on purpose for all-purpose legal work.

[EK]

That's a well-argued opinion, and I used to think the same way until very recently (see my earlier post in this thread). But then I found that it did not bother me at all to be reading cases set in osf. I even began setting my casebooks in Minion with osf and although you don't believe a decision like that could be intelligently made, I received nothing but favourable responses.

At bottom, it is a question of convention and habit. Lawyers have adjusted quite quickly to reading case law on the screen, set in sans. Surely they will overcome osf.

[Richard G]

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