Word Processing Wars

Lawyers have argued over the definition of “double spacing,” What is Double Spacing? (Dec. 4, 2023) and “any little ambiguity,” including the definition of a photocopier, id., citing Pouncing on Little Ambiguities Leads to Discovery Sanctions (Sept. 26, 2022).

Word processing has not been immune from disputes.  One court recently criticized a memorandum that had “21 footnotes that are packed with over 100 lines of small-font text. That probably would have added 4 pages or more of 12-point font text. And, those footnotes are not merely casual asides; they encompass nearly all of plaintiffs’ cited legal authorities and accompanying discussions. Dropping so large and so significant a portion of your brief into footnotes certainly does not make it any easier to read and follow….”  Sometimes Discovery Disputes Do Not Bring Out the Best in Us (June 20, 2024).

In Court scolds Weil partner for brief found to ‘incorporate by reference’ nearly 2,000 words from another document (abajournal.com)(Feb. 20, 2024), Debra C. Weiss reported that an attorney “apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs, according to the U.S. Court of Appeals for the Federal Circuit.”  He incorporated by reference 2,000 words from a prior brief in a related case, thereby exceeding the permitted limit by more than 1,300 words.

Perhaps the latest iteration of the word processing wars is Debra C. Weiss, Blaming Word setting for overlong briefs is ‘somewhat hard to believe,’ federal judge says as she tosses footnotes (abajournal.com) (Apr. 1, 2024).  There a litigant filed overlong briefs and Ms. Weiss wrote:

[Counsel] was unaware that the Microsoft Word settings had deselected the option to include footnotes in the final word count of the document. The briefs were within word limits allowed by local rules when the footnotes were excluded.

High 5 Games had certified that one of its briefs contained 8,400 words when it actually contained more than 9,000. It certified that another brief had 4,199 words, when it actually contained more than 4,300 words.

Although defendant erred, plaintiff went nuclear and moved for sanctions, asserting intentional misrepresentation.  Id.

While the Judge expressed skepticism that the error was entirely without anyone’s knowledge, “given the experience and sophistication of counsel for High 5 Games,” it reached a Solomon-like result.  Id.

High 5 agreed that the court should exclude the text in the footnotes from consideration on the summary judgment motion and the court, doing so, denied the request for monetary sanctions. Id.

That decision is not a unicorn:

Federal courts routinely warn litigants not to use textual footnotes to evade page limits. See Kano v. Nat’l Consumer Coop. Bank, 22 F.3d 899 (9th Cir.1994) (imposing sanctions on a party who violated form of brief rule through improper line spacing and excessive footnotes); DeMarco v. DepoTech Corp., CV 98–675–TW (POR), 1999 U.S. Dist. LEXIS 15321 (striking party’s reply memorandum due to excessive use of single-spaced footnotes). The excessive use of footnotes is not only disrespectful to this Court and to opposing counsel, but also unduly complicates the Court’s task and makes Defendant’s memorandum more difficult to comprehend.

Accordingly, Defendant’s Opposition and attached exhibits are hereby STRICKEN from the record, and Plaintiff’s Motion, currently set for hearing on October 21, 2013, is TAKEN OFF CALENDAR.

Caldera v. J.M. Smucker Co., 2013 WL 6987893, at *1 (C.D. Cal. Oct. 4, 2013).

The additional, curative remedy was unequivocal:

Defendant SHALL refile its Opposition no later than October 14, 2013, without any footnotes. If the information is important enough for the Court to consider, it shall be included in the text. If not, it shall not be included at all.

Id. (emphasis added).

“Court orders mean what they say, and compliance is not optional. Lawyers often find themselves wishing for more pages or more time, but ultimately must comply with limitations, deadlines, and other such restrictions imposed by the court. A lawyer’s deliberate violation of a court order is an abuse of process that requires an appropriate sanction….  The court PUBLICLY REPRIMANDS Mr. Edwards and Ms. Edwards for violating a court order.”  McClinton v. Cogency Glob., Inc., 2023 WL 3268782, at *3–4 (N.D. Ala. May 4, 2023).

“Both parties, but especially Plaintiffs, used excessively long footnotes to present legal argument and authority and thereby evaded the page limits. The Court warns the parties that future memoranda with similarly excessive footnotes may be stricken.”  SOS Co. v. E-Collar Techs., Inc., 2017 WL 5714716, at *1 (C.D. Cal. Oct. 17, 2017).

“As an initial matter, the Court admonishes Plaintiff, who is an attorney admitted to practice in this state and district, for his use of excessive footnotes in what appears to be an attempt to circumvent this district’s page limits. Plaintiff’s original opposition was over 28 pages long, and Plaintiff also included arguments in opposition in his Ex Parte Application. After the Court struck Plaintiff’s original opposition and directed him to re-file an opposition that did not exceed the 25-page limit, Plaintiff filed the pending Opposition. Although the Memorandum of Points and Authorities in support of the Opposition is exactly 25 pages long, it includes 18 single-spaced footnotes, most of which are very lengthy. Out of the 25 pages, ten pages are at least half filled with single-spaced footnotes, and five of those ten pages contain only two or three lines of regular text, with the remainder of the page consisting of single-spaced footnotes. See Opp’n at 14, 25, 29, 30, 36. The footnotes contain multiple citations to law and argument as to why Plaintiff’s claims should survive. Thus, the footnotes include the core of Plaintiff’s arguments in opposition. Had Plaintiff included some of these footnotes in the text of his Opposition brief, the brief would have likely exceeded the page limit. It would be within the discretion of the Court to strike the Opposition for Plaintiff’s excessive use of footnotes.”  Tenser v. Ryan, 2020 WL 4760192, at *7 (C.D. Cal. May 26, 2020), report and recommendation adopted, 2020 WL 5946078 (C.D. Cal. Oct. 7, 2020), aff’d sub nom. Tenser v. Silverman, 2021 WL 4958986 (9th Cir. Oct. 26, 2021).

“The Court prohibits the use of excessive footnotes in briefs. A brief supporting a motion or response may not contain more than 30 lines of footnotes. A brief supporting a reply may not contain more than 15 lines of footnotes.”  Bus. Health Sols., P.C. v. Am. Health Cap., 2023 WL 9060443, at *1 (E.D. Mich. Oct. 23, 2023).

One court has a standing order that excessive footnotes will be disregarded.  NOSSK, Inc. v. Fitness Anywhere LLC, 2022 WL 1489467, at *5 (N.D. Cal. May 11, 2022).

Another court imposed a limit in the midst of a dispute:  “Saber objects to Larkin’s excessive use of footnotes. It points to this Court’s individual practices, which counsel that “footnotes are highly disfavored and should be used sparingly.” And it says the Court should impose “a consequence.” Dkt. 78 at 2. But there is no bar on excessive footnotes, and it would be unfair to impose one retroactively. Counsel may choose to ignore the Court’s advice at their own peril. Indeed, here, Larkin’s constant footnoting and running up the citation score often reflected a lack of focus more than anything else. The Court will, however, make a change for this case going forward: any footnotes used in future briefing in this case (by either side) must match the font size and spacing of the body text. That is, footnotes should offer no page-count advantage going forward.”  Larkin v. Saber Auto., LLC, 2024 WL 2882595, at *10 (S.D.N.Y. June 6, 2024).

An article by Rose Krebs, “Attys In Google Maps Case Chided for Wordy Footnotes” (Law 360 Apr. 15, 2024), reported a show cause order directing counsel to show why their footnotes were not “calculated to evade the letter and spirit of page limits” set by the Local Rules.

This brings to mind Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960):

The issue is, what is chicken? Plaintiff says ‘chicken’ means a young chicken, suitable for broiling and frying. Defendant says ‘chicken’ means any bird of that genus that meets contract specifications on weight and quality, including what it calls ‘stewing chicken’ and plaintiff pejoratively terms ‘fowl’. Dictionaries give both meanings, as well as some others not relevant here. To support its, plaintiff sends a number of volleys over the net; defendant essays to return them and adds a few serves of its own. Assuming that both parties were acting in good faith, the case nicely illustrates Holmes’ remark ‘that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs— not on the parties’ having meant the same thing but on their having said the same thing.’ The Path of the Law, in Collected Legal Papers, p. 178. I have concluded that plaintiff has not sustained its burden of persuasion that the contract used ‘chicken’ in the narrower sense.

The court concluded that “the word ‘chicken’ standing alone is ambiguous…. When all the evidence is reviewed, it is clear that defendant believed it could comply with the contracts by delivering stewing chicken in the 2 1/2-3 lbs. size. Defendant’s subjective intent would not be significant if this did not coincide with an objective meaning of ‘chicken.’”

More recently, in U. S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958, at *1 n. 2 (N.D. Ill. June 17, 2024), the court wrote that: “There is no need to waste much time parsing and sifting through the parties’ back and forth regarding each of the nearly two dozen questions and responses the parties have asked the court to look at for them. Life is short.”  Id. at *5 (emphasis added), as quoted in Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024).

Sometimes, the best approach may be to use old technology – pick up the telephone.

“The practice of law may be poetically likened to sailing a ship. Constitutions, case law, and legislative enactments are to the lawyer what charts, buoys, and beacons are to the sailor. The compass, however, is generally agreed to be the most important navigational aid on ship.”

“The Maryland Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he files and tries a case.”

Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977) (emphasis added).

The “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum.” Colonial Carpets, 36 Md.App. at 584-85, 374 A.2d at 421.

“Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.”  Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).