The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: law

Book review: Typography for Lawyers – Matthew Butterick

What is the ugly truth about why typography is so important for lawyers? :

I believe that most readers are looking for reasons to stop reading… [o]nce the reader’s attention expires, you have no chance to persuade

– Matthew Butterick, Typography for Lawyers: Essential Tools for Polished and Persuasive Documents, Jones McClure Publishing

I was very kindly sent a review copy of the new legal typography book this week and I’ve really been enjoying it. I’ve written about the website which spawned this book before because it gives a useful introduction to the principles of typography, how it relates to legal writing and why it matters at all (hint – it’s important to make your writing inviting and easily readable because of that quote at the top). The book continues that mission with examples, tips and rules written by a professional typographer turned professional lawyer. Just about every section comes with point by point instructions for implementing it in Word 2003; Word 2007 and 2010; WordPerfect and Pages — a broad range of the most common word processors that you might reasonably expect someone to use. Even then, the advice is universal and you don’t even need those programs to benefit from it. Inside the front cover is a useful list of special characters along with a list of 28 key rules for quick reference. It is a very useful working handbook which is worth keeping close to your desk.

There’s always a worry in my mind that when a popular website publishes a book based on the website they will just stick two covers around what the original website said and not a word more. That’s not the case here and the author has unquestionably given value for money with his new book. There’s a lot of extra material written just for the book and it also avoids some of the limitations of a website format. There’s an inherent catch 22 in presenting typography tips on a website as, for example it’s hard to demonstrate the benefits of high-resolution print-optimised fonts on a website — after all, on page 82 you find out that a monitor has less than 3% of the resolution that a laser printer does. In a book you can immediately point out the little details (and make no mistake – each individual element is a fine detail) that are brushed out to make it easier for screen display. Suddenly “this font is better than this font” discussions make much more sense. The issues of subtlety and fine detail come up a lot – you are encouraged to adjust the size of text by 144ths of an inch at a time to see what works best. The changes are subtle, you can instantly see they’re right after you’ve done it and the worst thing is that you would never even know to do to it without being told first (use invisible “optional hyphens” to tell the computer the best place to split words between lines?). This book tells you how.

The best advice Butterick gives about typography is that it is not an exercise in artistic skill or taste but intent. The purpose of someone studying typography for legal writing is not to turn their case or essay into solid gold by changing the font but to polish it to more clearly show the merits. Studies testing marking styles show that an essay written in bad handwriting will score less than the same essay copied out in good handwriting. People like things to look good and people like things that look good. This is particularly true when people are dealing with piles of broadly similar documents. A judge or marker or supervisor or any professional reader probably does not want to read your document all that much but they have to because it’s their job. The best thing you can do for someone in that unenviable situation is to make it a) easy and b) pleasant for them. Content is king but the medium should not be forgotten.

Typography for Lawyers is on sale now for $25 which, thanks to our global village and affordable shipping, is just £16.07 in real money. Consider it recommended to anyone who writes about law because it’s a crucial element of the process explained very well.

But…

For the next edition it would be good to get some more international information. Your reader isn’t going to want to see different things from American ones so the advice travels well but the book is written from an American point of view – The Bluebook is referred to extensively along with The Chicago Manual of Style, the 7th Circuit’s style guide, the Californian Style Manual and others. In an ideal world I’d like to see about the Court of Session too.

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Legal Websites and some thoughts

I believe there are two ends on the online legal resource continuum – sites can be inward looking or outward looking or some combination of the two. With inward looking sites being those intended for people studying, practicing or merely reading about law itself. The outward facing sites are for those affected by legal issues as lay people. The difference, is generally, but not always, simply the amount of evaluation and editorialising that goes on with the content and the approximate degree of separation from the original source material – inward looking resources are used by people who, when it comes down to the nitty gritty, have to tell a tutor, examiner or another professional that the dicta in paragraph X of case Y or that section a(b)(c)(i) of statute Z supports their position better than the other guy. Users of the outward facing sites simply want a reasonably straight forward answer to questions like “can I build a fence in my garden?”

Sites are not entirely one or the other, there’s a definite continuum online, but users of one kind may find themselves disappointed by the other. I quite like the soft edges of outward facing resources to gain a general, big picture analysis of what I should expect to find when I have a look at the source materials – I learned the basic provisions of the Unfair Contract Terms Act through consumer rights education while still at high school. It put me a good position when I studied statutory interpretation in my first semester of first year and needed to make some sense of the quite notorious piece of legislation. I find statutory interpretation very difficult – though not nearly as hard as statutory drafting – simply because there’s so many techniques, some modern and some truly ancient, to help you gain meaning from statute. Let’s not even mention Pepper v Hart which is distilled essence of “more hours researching in the library” wrapped up in a cute case name. Effectively knowing what I’m going to find is a massive crutch that will be awkward if it’s not there but certainly helps if you’re already just finding your feet. That means that reading sites that I’m perhaps not going to cite in my bibliography is still very helpful – the whole concept of academics is based on “standing on the shoulders of giants” and there’s nothing wrong with standing on the shoulders of giants who write in simpler language. Being able to back it up in a more scholarly manner, which generally seems to mean by quoting like a man possessed, is the goal but comprehension is a infinite help in writing an essay.

The ultimate inward facing legal websites are obviously Bailii, HUDOC, Lexis Library, Westlaw and the rest of them – sites that exist to give you access to source materials. The commercial databases do a remarkable amount of what database engineers would call “input sanitising” – Westlaw US checks so thoroughly that it often sends source documents back to the courts that wrote them with errata, for example, but all remain initimately connected with the original text and are fairly hard going for someone without a legal background of some description.

Up from this very source level are sites where there is still heavy reliance on source documents but they are accompanied with editorial content – I particularly like eulaw.typepad.com for this sort of thing.

The next level up are what is effectively the online textbook. I’m actually unaware of anything that I would class in this category which is still very much material for those studying, and perhaps practicing – I was certainly pointed to my textbooks as the basis of a mooting submission and the advice seems very sound – law. I would certainly use it though, so I’d appreciate a pointer for that if any reader can think of one.

Beyond that is a marked distinction into those intended to “simply” provide an answer – the Wolfram Alpha to Westlaw’s Google, if you like. Writing high quality legal reporting at this level is a very different beast which requires a much more reader friendly approach, sites may not even mention the source material or if they do it’s in very vague terms – like the “Sale of Goods Act” (an act with 64 sections and 4 schedules) providing you with “statutory rights”, rather than talking about Part II ss.10-14 adding “implied terms” to “contracts of sale”. These sites are generally very easy and quick to read, and while they don’t really provide the sort of detail you’d get a particularly meritorious mark for at uni they will hopefully settle your legal issue quite straightforwardly. Sites like this are relatively numerous but are generally fairly specific in the material they cover – taking ukecc.net or gardenlaw.co.uk as examples. Consumer advice sites are most helpful, frankly, at this level.

Generally the simpler things are the hardest to write. It’s easy to read out a bit of statute, point to it and say “that’s the law” but it’s unexpectedly difficult to point a statute, decide what’s relevant, what it means in context and then decide if it helps. It’s not a flaw with legislation, it’s just a result of living in a complicated world. The harder material is still extremely hard to write but being able to explain concepts to someone without a background in the particular field – even intelligent people with skills in another field – is a bit of gift. For example I certainly know that a lot of medicine goes straight over my head, even though a reasonable amount of computing and an increasing amount of law won’t, and I need it explained to me in quite small words.

No fly list – a cost/benefit analysis

Marcus Holmes has done a fascinating piece of economic research for the United States no-fly list. He uses a very effective US Government cost/benefit model for the project to see if the tangible costs can compare to the intangible and tangible benefits. While it is very easy to find the results of the list breaking in real life online it is very much harder to find an accurate breakdown of the costs involved in this huge project.

It turns out that this is a deliberate difficulty because the cost of the no-fly list is literally classified material and therefore it was only possible for Holmes while compiling his break down to ask sources inside the project who could not tell him any more than the barest details before coming into the realm of classified secrets. Area-51 is classified, the US Army budget has to survive with its only protection from prying eyes being the fact that it is long and a bit dry. Why is this level of secrecy required? Holmes suggests this could be to leave the terrorists guessing about the exact state of intelligence that the West has. The author sadly admits that, on examining the administration’s record on other national security projects, that this is unusual behaviour. The administration never the less claims that the list does work and is helping to prevent several  dangerous people from flying every week. Quietly.

While the law in this field is difficult, in flux and highly specialised the economics is not — although it is skillfully applied by the author and while the article is long I heartily encourage readers to give it a careful look — and is highly accessible to even my introductory level of economics. Through the use of publicly available data and some logical and carefully decided estimations he comes to the conclusion that the list has a burn rate of $100 million/year. This is vast but not a problem if it serves the taxpayer more than this in a combination of tangible (money saved) and intangible (life saved, attacks averted) benefits and it is this part of the analysis which is most important. To bring the focus on a topic closer to home — the problem is not that the Scottish Parliament building cost a large amount of money, the problem was that people thought it cost more than was reasonable for the benefits it would pro-vide when it was completed.

While law matters to the world as a whole, another pillar is economics — the tool to describe the world in highly objective and quantified terms — while leaving law to be its occasionally enigmatic, discretionary and most importantly human, self.

A different definition of Alibi

Just a quick definition post here but it’s far too good to hide away in my glossary of terms.

I’ve already got alibi listed in the glossary and as all law students who have done their semester of Criminal Law know :

alibi Lat, [I was] “somewhere else.” A special defence providing a complete defence from any accusations if accepted. As it is a special defence the defending counsel must submit it in advance of the trial beginning and defending counsel must accept the burden of proof to prove that the person truly could not commit the crime. The Criminal Law Deskbook of Criminal Procedure states: “Alibi is different from all of the other defenses…it is based upon the premise that the defendant is truly innocent.”

However, in the words of “Ireland’s International Comedian” Hal Roach:

“The judge said to Murphy, “Are you guilty or not?” Murphy said said, “I don’t know until I hear the evidence and that’s my alibi.”

The judge said, “Don’t you know what an alibi is?” Murphy said” Yes, your honour, an alibi is to be after proving that your weren’t where you were when you committed the offence that you didn’t commit at all, and what’s more I wasn’t there at the time.”

Now that’s one to remember when you start to practice drafting pleadings.

I know a little of that copy looks odd so I’ve included the original for the quote here:

I know some of that quote looks dodgy so I decided I\'d show the original here

Final Exam

I felt today’s exam went well; I certainly left feeling good about my chances. I did three questions on the beginnings of contract and then afterwards took advantage of the bright sun to explore the West End – all in all a good way to end the university year. It’s been a very good year and I’m looking forward to the next.

I’d forgotten what I love about exams, the thrill when you go in and try to show what you can do. I had a bit of trouble getting up in the morning which surprised me as I’d taken the standard precautions in the run up to the exam – no late nights, going to bed in a regular schedule and using an alarm clock to wake me at the same time every morning – but once I was up I started to feel the butterflies in my stomach going as my adrenaline levels started to rise. It’s horribly geeky of me but I genuinely get physically excited at the prospect of exams, I truly love them. I don’t enjoy waiting for results as much but there’s something primal about a well done exam – it gets the heart rate up, maybe even causes a flush in some people and you simply show single minded focus on a set of intellectual challenges for hours of your life. It’s pretty unsurprising that I happen to enjoy quizzes for roughly the same reason.

I’ve never been able to understand why people wouldn’t like to do exams, I came close in maths, a field that both fascinates and escapes me at the same time, and I recognise the frustrated feelings that arise from the answer seemingly never coming. To my shame, when my friend in front asked “3 times 40 is 120, right?” I couldn’t place it, but she was timing essay change-overs like a true student, using maths in an English based subject, no less.

One new concept I had in my exam today was being able to bring a text to help. I brought Avizandum Legislation on The Scots Law of Obligations (3rd ed.) compiled by Laura J MacGregor, a really useful book to have. It seems insane to purchase this book when law schools provide students with easy access to online references via Westlaw and LexisNexis, and simply HMSO provides people with free access to statutes themselves but it proved its worth by simply being the book I was allowed to bring in (and, with that stamp of approval promptly went out of stock at the library for the rest of the year) and including a collection of books which my introductory course would not seem to attribute to the area of contract law, so I hope I can use the book again in future, I think it may be handy to have it on hand at Honours. I had expected the book to make the question asking about the effect of statute pretty much a case of reading the book and stitching the relevant provisions into a story. Not so, I actually found myself confused to the point of forgetting my original introduction to the Unfair Contract Terms Act 1977, in my 5th year at secondary, and somehow forgetting that the question was asking me a question on the effect of limitation clauses regarding personal injury. I talked a great game about the negligence of the company not being mentioned in the terms of the limitation and therefore the court would never support a hypothetical defence of a case of negligence but somehow skated past the answer I was expected (and, in truth, expecting myself) to give. I nevertheless quoted at length to prove my skeleton argument was supported by the facts and by provisions of the act, but somehow never going as far as to say “clauses which limit liability in the event of personal injury or death are void” and the reason for that slip evades me. I don’t think I will ever make that mistake again. I’m surprised that my practices with older papers never showed this problem but I think I wasn’t able to copy the adrenaline rush that I love so much in the exam experience and I couldn’t predict that I would react that way. That’s one risk of the exam day.

If you talk to students, not just this one, who have really prepared and enjoy the challenge and tried after an exam, they will either be emotionally and physically drained or euphoric. Today, since it was a shorter paper than we’ve become used to the mood was euphoric. There’s not much more satisfying to a serious student than a test which they have studied their hearts out for that comes off well for them. It’s a wonderful feeling to have and you leave the hall feeling psyched for anything, you feel “ready to run a marathon”.  Obviously, this same adrenaline rush will mean that a few hours later you will be yawning into your tea and snoozing on the bus but that initial buzz is well worth taking the exam.