• Rob Carty

Some Things I've Noticed Recently

While reading briefs lately, I’ve repeatedly noticed three things.

Observation 1: Hyphens or en dashes in citations? Yes, this is a thing. Bluebook Rule 3.2(a) allows us to use a hyphen (-) or a slightly longer en dash (–) when citing a range of pages. If you’re worried about word limits, use hyphens.

Here’s why. Courts generally allow (or require) you to rely on your software’s word-counting feature when you certify your brief’s word count. See Fed. R. App. P. 32(g)(1). You may not know this, but Microsoft Word treats hyphens and dashes differently. While it counts “1065-66” (hyphen) as a single word, it counts “1065–66” (en dash) as two words. Using hyphens can shave hundreds of words from your count.

Observation 2: How many spaces after a sentence? I take no pleasure in entering this fervid debate. When I last checked in, Team Two-Space had trumpeted a Skidmore College study finding that using two spaces makes things easier to read. Team One-Space fired back, saying that proportional fonts eliminate the problem. Well, not always.

Here’s what I've seen recently. Suppose you have one sentence that ends in an abbreviation. This creates an ambiguity: Does the period end the abbreviation only, or the entire sentence? Suppose further that the next sentence begins with a proper noun—are you at the beginning of a new sentence, or still in the previous one? An added space fixes the problem.

We see this all the time in certificates of interested parties and other text containing corporate names. I’ve experienced it first-hand in multiple briefs. Even when the text has been done up in a gorgeous proportional font, the lack of an extra space still causes me to hesitate, rewind, and reread:

I’m sorry, but that reads like an old-school teletype. Unless you stop to process what you’re reading, it looks like an endless string of words. Adding a second space after each sentence gives you a fighting chance to make it through the passage in one smooth stroke:

The difference is subtle, but the second passage is easier to process. (Just admit it.)

Observation 3: “Has not, and cannot . . . .” I keep running across this phenomenon. Lawyers love to say things like “Plaintiff has not, and cannot, show causation.” The attentive reader will hesitate here because you can’t say “has not show causation.” This kind of mismatch is sometimes called “non-parallel ellipsis” (but honestly, who cares).

Okay, I get it. This is really common, especially when speaking, and it’s not the worst thing in the world. But still, every time you introduce these little hiccups in your writing, you chip away at your reader’s focus. So try something like this instead: “Plaintiff has not shown, and cannot show, causation.”

Have a question or suggestion? E-mail me: TheHeavyPencil@gmail.com

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