The Trouble With Kerning and Spacing

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.


  1. Since a word counting function is part of every word processing program, why would the courts not just limit briefs to a number of words?

    The word limit could exclude footnotes, headers etc.

    Given that ‘pages’ are really a function of paper and we are also trying to encourage electornic filings, word counts make a lot more sense.

  2. Marcel,
    That would work too. Though I can already envision the creative use of thesauruses to find the monster words which would replace several smaller ones. I don’t think that would assist readability, which would not be beneficial to the court either.

  3. I once represented a landlord at the Ontario Rental Housing Tribunal. After the oral hearing, the Chair wanted written submissions, limited to five pages. The unrepresented tenant (whose “Legal Advisor” was her father who has an LL.M. but has never practiced law in Ontario) served on us five full pages with 0.5 inch margins, 10 point font and single spaced text. In contrast, mine had proper margins, 12 point font, and just a lot of white space in general.

    While I don’t think this was the deciding factor (ultimately the tenant was found not to be a credible witness) the fact that the Chair took some of my phrases in her ruling suggests she found my submissions easier to read.

  4. Word counts are probably closer to the eventual solution, however it’s important to note that not all word processing programs count words in the same manner. The differences are especially apparent in legal writing, which features an abundance of footnotes, and small “words” like “24. Ibid. See also John v Smith (1999), 1 DLR (2d) 3 at 4ff.” Is the auto generated footnote number (“24.”) counted, whether at the beginning of a footnote or in the body of a text? Are footnotes? Well, what if you include parenthetical case summaries after the end of your footnoted citation? Should the lawyer be penalized for including parallel citations? Rewarded for establishing at one-word “short name” for use throughout the main body of her factum (“Patriation” rather than “Patriation Reference”)? How do you decide which software produces the “official” count? Do I need to install Parallels on my Mac just to run the Windows version of Word? Even holding the software constant the number of words might also change if the lawyer insists on using periods in “D.L.R.”

    This is a problem we had back in law school when assignments were given with “word count” limits, and just as the lawyers were in this case students back then were keenly interested in ways to game the system. Some were rightly penalized, but others may have suffered because they didn’t have the same software as the professor, and thought that the more case law cited the better.

  5. The Federal Court has adopted specific rules regarding font, number of lines per page, minimum margins, and maximum number of lines per page. These have the effect of begin a fairly tight control over how much material can be put on the page, and apply equally to physical and electronic submissions (all e-filing must be in pdf format, with same physical dimensions as paper).

    And yes, the registry will sometimes pull out the ruler and start counting lines when presented with something that looks a bit off.

    While you could cram a few more words in by playing around with spacing between characters and creative word choice, it would seem counterproductive; urgoing2lookcramedandsoundakw. You’d probably be better off dropping your worst argument, rewriting more succinctly, or if truly needed, just asking for more pages.