Games Lawyers Play: Word counts and spacing rules in briefs appear open to interpretation
Norm Tabler.
As teenagers, some of us played a game with our writing assignments. The goal was to make an essay or report appear longer than it actually was. Why? Because our teachers specified a minimum number of words or pages, and we struggled to reach that number.
Those of us of a certain age—say, Senior Lawyers Division vintage—had few tools back then. The one that we most often relied on might be termed “margin creep.” We simply fattened the margins, hoping that the teacher wouldn’t notice the resulting shrinkage of text.
Lawyers who write briefs often continue to play the game but with a profound twist. While the teenager’s goal was to appear to reach a minimum, the brief writer’s goal is to appear to stay within a maximum.
Wise to the game, courts now generally require double spacing—except in long quotations and footnotes—prescribe a minimum margin size, dictate a minimum font size, and outlaw text in the margins.
Have these efforts by the judiciary stopped the brief writing word game? No way. Brief writers continue to pursue, even create, loopholes with the persistence and ingenuity of prep school boys sneaking into the girls’ dorm. Caselaw routinely outs lawyers who got caught gaming the system. Here are a few examples, arranged by category.
You mean those words count?
Litigating in the federal court for the Western District of Washington, attorney Jessica Smith was caught sneaking extra words into two briefs. She certified that the word counts were 8,399 and 4,199, when they were actually 9,033 and 4,310.
Smith said she had excluded all the footnotes from her word count. It was only when the footnotes were included that she exceeded the limit.
The court’s reaction? All words count—even lowly footnotes.
My computer did it behind my back
Smith had a second defense: She insisted that her Microsoft Word settings had, without her knowledge, deselected the option to include footnotes within the final word count.
Though clearly skeptical of the explanation, the judge declined impose the sanction requested by opposing counsel. But in a Solomonic gesture, the judge declined to read the footnotes.
Honey, I shrunk the space
Most courts require double spacing. But what does double spacing mean? To Microsoft Word and those who rely on it, it means 28 points (a point is 1/72nd of an inch) between the lines. Nevertheless, from time to time, some wordy litigator submits a brief that appears darker and denser than normal and takes a little longer to read. The explanation? The lines are only 24 points apart, rather than 28.
Challenged, the writer invokes a literal interpretation of the term double, arguing that it means twice the 12-point font size, and 2 multiplied by 12 is 24, not 28, no matter what Microsoft says. Ironically, lawyers for Microsoft once took this position to shoehorn more words into a brief.
In a recent decision on the subject, the 24-pointers won a technical victory over the 28-pointers when a federal judge declined to sanction the former for exceeding the page limit. But the judge concluded her ruling with the admonition that “the last thing any party needs is more words on a page.”
The out-of-body experience
A brief qualifies for the out-of-body-experience category if the body of the brief contains a directive for the court to read further in yet another brief, the unspoken theory being that the second brief is somehow exempt from any limit. Lawyers call it incorporation by reference. Judges call it violating the rules.
When the U.S. Court of Appeals for the Federal Circuit called for briefs of no more than 10 pages, attorney Mark Perry responded with a brief that “incorporated by reference” 2,000 more words from another brief, thereby exceeding the limit by more than 1,300 words.
Called to account, Perry responded that he was unaware of any precedent forbidding it. An obviously furious court retorted that precedent does, in fact, exist—in a decision admonishing Perry’s law firm for trying the same trick.
Nor was the court pleased with Perry’s argument that he had done the court a favor by “sav[ing] the time and resources of the court.” How does it save me time, the judge responded, to require me to cross-reference arguments from multiple briefs in multiple cases?
A brief wrap-up
In short, when it comes to persuading lawyers to keep their briefs brief, courts are playing a game of “whack-a-mole.” Tell them to double space, and they’ll redefine the term to make the spaces smaller. Impose a word count, and they’ll exempt some words. Challenge the exemption, and they’ll blame the computer. Impose a page limit, and they’ll use the pages to refer the court to more briefs.
Will they ever stop? Of course not. They’re lawyers.
Norm Tabler is a retired lawyer whose focused on health law. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience e-newsletter (for which he writes the column “Adventures in the Law”) and Experience magazine and the Indiana State Bar Association’s Res Gestae magazine (for which he writes the column “Annals of the Law”). He writes and records a monthly podcast, The Lighter Side of Health Law, for the American Health Law Association’s Health Law Weekly.
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