Legal design in the news (for the wrong reasons)

Last month a federal judge fined a law firm $1,048.09 for filing a document with the wrong line spacing. The story made the legal-news circuit, but was not covered widely. I imagine that if people on the street were told about it, their reactions might range from What on earth? to Lawyers will be lawyers .... 

Stories like this disappoint me because everyone takes away the wrong message. In this case, the rule that the law firm broke is outdated and silly. And the law firm’s skirting of the rule was inappropriate and foolish. But what worries me most is that other lawyers who hear this story will be afraid to experiment with the formatting of their own briefs for fear of a similar rebuke. And if lawyers aren’t willing to push back on these silly formatting rules (in a principled way, unlike the firm in this story), then it will be even harder to improve the typography and readability of court documents, which I believe is crucial for our society.

Here’s what happened

Like several other judges in the Southern District of New York, Judge Marrero’s individual practices include a rule that certain types of briefs must be “limited to 25 pages .... double-spaced and in 12-point font with 1-inch margins.” (This is a terrible way to format documents, but that’s another post.)

In CaféX Communications, Inc. v. Amazon Web Services, Inc., the law firm representing Amazon, Susman Godfrey, filed a 25-page brief using 12-point font, one-inch margins and 24-point line spacing. 

What’s the difference between double spacing and 24-point spacing? Let me use Microsoft Word to illustrate. If you click the line-spacing dropdown menu, you get a list of choices: 1.0, 1.15, 2.0, etc. The term 1.0 is known as single spacing and 2.0 is known as double spacing.

If you click “Line Spacing Options...” you get even more choices. You could choose, for example, to set the line spacing to “exactly” 24 points, which is what Susman Godfrey did for its brief.

So, what’s the difference? Matthew Butterick explains on his website Typography for Lawyers:

Most courts adopted their line-spac­ing stan­dards in the type­writer era. That’s why court rules usu­ally call for dou­ble-spaced lines. On a type­writer, each line is the height of the font, thus dou­ble spac­ing means twice the font size. So if you’re required to use a 12-point font, dou­ble line spac­ing means 24 points.
Curi­ously, the so-called “dou­ble” line-spac­ing option in your word proces­sor doesn’t pro­duce true dou­ble line spac­ing. Microsoft Word’s “dou­ble” spac­ing, for instance, is about 15% looser, and it varies depend­ing on the font. To get accu­rate spac­ing, you should always set it your­self, exactly.

In other words, you might think that 24-point spacing would be considered double spacing when using a 12-point font, but because Microsoft chose to define “double spacing” as something more than twice the font’s point size, that is not true if you’re typing in Word.

Because 24-point spacing is tighter than “double spacing,” you can fit more lines of text on each page. By using 24-point spacing, Susman Godfrey was able to submit a brief that appeared to comply with the 25-page page limit, but was in fact “substantially longer.” (Although I was not able to obtain the original brief from the case, I ran my own experiment in Word and it looks like Susman Godfrey may have gained an extra 4.3 pages by doing this.)

According to Judge Marrero, Susman Godfrey deliberately flouted this rule in an attempt to gain some slight advantage in litigation. Because Susman Godfrey acted deliberately, the judge ordered it to submit a revised, compliant brief and to tell the court how much it cost to do so. Susman Godfrey said it cost $1,048.09 to resubmit the brief, and the judge decided to impose a fine in the same amount to deter similar conduct in the future. 

Here’s why this is all so silly

This story might cause you to scratch your head for a number of reasons:

  1. Imposing a page limit (as opposed to a word-count limit) is outdated. Word processors give us much more control over the formatting of our documents than typewriters did. Two documents with the same exact word count can take up a different number of pages depending on how they are formatted. Line spacing isn’t the only variable. If the court used a word-count limit instead, no one could “game the system” by tinkering with formatting.
  2. Even if Susman Godfrey’s trick had gone unnoticed, it’s unlikely that the extra four pages would have given it an advantage. Judges generally prefer shorter briefs that get to the point. Lawyers’ tendency to write right up to the page limit annoys a lot of judges.
  3. If an attorney really felt that she needed more than 25 pages to make her argument, Judge Marrero’s rules allow her to ask for an extension of the page limit. (Though, to be fair, he says that he will “entertain” such requests “only in rare cases where the facts and issues are particularly complex.”)

If this choice by Amazon’s attorneys really was a deliberate attempt to get around the page limit without having to ask for an extension (which most likely would have been denied), then it’s a prime example of why people can't stand lawyers. This is crummy behavior on a number of levels. 

On the other hand, I think there’s a possibility that the lawyers didn’t think they were “breaking” the rule. They may have thought that 24-point spacing of 12-point text would count as “double spacing” and thus technically comply with the judge’s rule. In their eyes they were simply picking their preferred interpretation of “double spacing.” (Or, possibly, they didn’t even think about this distinction at all and didn’t realize they were getting an extra four pages.)

Given the origin of the term double spacing, I don’t think this is a totally unreasonable argument. Moreover, other courts explicitly allow even greater variations. In California, for example, the court rules impose page limits on briefs but allow them to be either “one and one-half spaced or double-spaced.” Using 1.5 line spacing instead of double spacing allows for approximately 9.5 extra pages if you’re working with a 25-page page limit! 

Curiously, I have never seen a brief filed in California state court that was not double spaced (or at least 24-point spaced). Perhaps California lawyers are simply unaware that they have this choice, or perhaps they assume that all California judges have a strong preference for double spacing—as Judge Marrero apparently does!

I worry that this story will discourage lawyers from learning about typography and will cause them to interpret court formatting rules as conservatively as possible. Instead of using formatting tricks to flout the rules and gain a perceived advantage over one’s opponent, I wish more lawyers would learn how to use typography to improve the readability of their briefs. If more judges saw how typography could be used to make their jobs easier, perhaps we could persuade them to change the outdated court rules that perpetuate bad typography.