Long ago, in the land of manual typewriters, whiteout, and carbon paper, our memos and briefs looked awful. And when we went to an appellate court, often we had to have the briefs typeset and printed. Why? Because the appellate judges, who read countless briefs, did not want to read briefs in Courier or any other monospaced type. It’s too difficult to read. (See Rule 9.)

Now, we can make our documents look like printing. It’s great, especially when we use a good typeface (Georgia, Palatino) and good spacing and design. We can move text around effortlessly and duplicate clauses in repetitive documents. But new technology brings new pitfalls.

New technology, new problems

The ability to cut and paste allows us to easily move paragraphs around. But we need to watch out. I’ve seen them obviously out of order.

Even worse, some lawyers start their briefs the same way each time. With one lawyer’s briefs, I know that “In this case…” starts in the middle of page six. Everything before that is boilerplate about the standard of review in a criminal case.

And have you ever been caught by Spellcheck? Of course – we all have. Spellcheck is a great tool. But it has its limitations.

You might mean constitution, but if you type it wrong, Spellcheck might think you mean constipation. And don’t even think about the penal system.

For years, the Ohio Judicial College used envelopes with the return address Judicial Collage. Collage was spelled correctly and was alphabetically before college, so in it went.

I read in a brief that “the law is defiantly clear…” Puzzled, I made a few entries and discovered the genesis: if you mistype definitely as definantly – a common enough error – Spellcheck will suggest defiantly.

Just make sure to (1) do the final edit, and (2) keep your cursor over skip, not replace. And have someone else proof your text. Spellcheck is a great tool for catching typos and misspellings – but there is no substitute for old-fashioned proofreading.

Earlier this year, California lawyer Arthur Dudley failed to check his final draft of an appellate brief after it had been Spellchecked by someone. He had used sua sponte a half-dozen times. Sua was changed to sea and sponte was changed to sponge. As in, “it is well settled that a trial court must instruct sea sponge on any defense.” Good thing his first name isn’t Bob.

An error, and an everyday mistake

And talk about proofreading – twelve pairs of eyes (at least) missed the marshal for martial in May’s column. But at least a dozen alert readers caught it.

Paralegal Carolyn Lindsley of Cincinnati asked me to comment about everyday. Too often we see everyday used incorrectly. “This is an everyday occurrence” is correct. “This occurs everyday” is wrong. Lawyers improve our lives every day, not everyday.

Readability

I always show the readability scores for the column. Statistics for this column: 11 words per sentence, 6% passive voice, and grade level 7.6. (See Rules 16 and 17.)

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 11 years, after 13 years on the Hamilton County Municipal Court. He has taught as an Adjunct Professor at the University of Cincinnati College of Law since 1990. Judge Painter has given dozens of seminars on legal writing. Contact him through his website, www.judgepainter.org.