Writing clearly and concisely is a goal that often eludes lawyers, especially when writing factums.
Justice Barbier of the United States District Court Eastern District of Louisiana ruled on a motion on Sept. 15, 2014 in the complex litigation surrounding the BP oil spill, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010.
Although denying the motion, Justice Barbier commented on the response by BP, in particular in their formatting:
…the Court must address the format of BP’s opposition memorandum.
The briefing order allowed BP’s counsel to file a response of up to 35 pages, double-spaced. (Rec. Doc. 13154).
This is 10 pages over the usual limit for response briefs. BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages.
The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.
Any future briefs using similar tactics will be struck.
Similar tactics are adopted by many lawyers by using kerning,which subtly adjusts the spacing between characters. Sometimes lawyers are caught, and accordingly reprimanded by the bench. More often, the changes are so minor that they are often missed or overlooked.
The need to place page limits on court documents stems from the burden imposed on the court in additional time, and is a guideline used to impart fairness to both sides in litigation. You do have to wonder how many judges are measuring spacing though in these documents, rather than considering the merits of the contents.
Of course digital filling could probably resolve all of these concerns far better than manually inspecting documents.