by Derek H. Kiernan-Johnson, University of Colorado Boulder, [This article first appeared in The Conversation, republished with permission]

The dispute over former President Donald Trump’s eligibility to appear on the Colorado ballot will come to a head on Feb. 8, 2024, when the U.S. Supreme Court holds oral arguments in the case. Dozens of individuals and organizations have weighed in by filing what are called “amicus curiae” – friend of the court – briefs. These briefs can give judges different perspectives on a case than the litigants’ briefs do.

When each amicus brief – or any other kind of brief – is filed, the court requires that a separate document be filed along with it: a “certificate of word count,” in which the filer promises that the brief does not exceed the word count allowed by Supreme Court rule. Depending on the circumstances, the Supreme Court’s limits range from 6,000 to 13,000 words, or about 20 to 50 pages.

Why is compliance with this word-count requirement so important to the Supreme Court and to many other U.S. courts that it must be attested to in a separate, signed certificate?

Maybe because many lawyers, when given the chance, will write as much as they can.

They forget, as Justice Clarence Thomas put it in a 2007 interview with author Bryan Garner, that judges are “really busy,” and what that particular lawyer wrote is “not the most important thing” their judge will read that day.

Justice Clarence Thomas gives writing advice to lawyers about what a judge wants to read.

As a law professor who, for almost two decades, has studied what judges find persuasive, I know that Thomas’ view is widely shared. And I also know that lawyers spend a lot of energy – and words – trying to evade limits. These efforts have even extended to arguing in court, with citations to renowned typographical experts, about the precise definition and measure of what constitutes “double-spaced.”

‘Too long, too long, too long’

From the judge’s perspective, the purpose of word limits is to invite lawyers to make their arguments leaner and more focused in order to conserve judges’ attention.

Pennsylvania-based Chief Judge Ruggero J. Aldisert summarized the views of dozens of other chief judges by noting that the first problem with briefs is that they’re “too long, too long, too long.”

And in 2012, when a lawyer in a Florida case asked Judge Steven Merryday for permission to submit a brief that would have exceeded his court’s limits, the judge not only rejected the request but line-edited the first paragraph of the proposed filing − paring it down from 176 words to just 46.

But some attorneys instead read word-limit certifications as an effort to constrain the perceived persuasive power of extra-long briefs rather than signaling the outer edge of what judges will read. The number becomes a goal rather than a maximum.

And so, when one side appears to write past that limit, the other side calls foul and files an objection in court.

In these objections, a lawyer usually asks the court two questions: First, to determine that the filing whose length was questioned really did exceed the word or page limit. Despite modern technology and electronic filing, some courts still impose page limits. Second, the court is asked to do something about that violation, such as require the party to refile a shorter version or, sometimes, to instead allow the complaining party extra space as well. Some even ask the court to sanction the first party for their misconduct.

Of course, the other lawyer writes back with arguments and requests of their own.

So, our already busy judge now has even more to read and more decisions to make. California-based Judge Jesus Bernal was so put off by the “sheer audacity” of an attorney complaining about “minor formatting issues” in the other party’s brief that he sanctioned the complaining attorney, requiring that attorney to pay the other side’s fees and costs.

Arguing over spaces

One subset of these conflicts are fights over the meaning of “double-spaced.” The most recent example, from November 2023, arose in Tennessee before U.S. District Judge Sheryl Lipman.

One side noticed that the other side had filed a brief that seemed to have more lines of text per page than their own briefs contained. It turned out that those lawyers had spaced their lines of text 24 points apart – a “point” is 1/72 of an inch – rather than closer to 28 points, which the complaining lawyers asserted was the measure in “all widely-used word processing programs” using the “double-space” setting.

Thus, to “ensure a level playing field,” they asked Judge Lipman to require the other side to put more space between lines of text in future filings.

The 24-point lawyers responded, marshaling 58 pages of argument and exhibits in support of their spacing.

They began by explaining that, in typography, double-spacing “has an objective meaning,” which is “double the size of the typeface font.” To prove that their writing met this standard, they measured it with a specialized typographic ruler called a pica pole.

As for the propriety of using that definition in legal briefs, they cited the leading authority in the field: Matthew Butterick, whose book “Typography for Lawyers” has a whole section on line spacing.

Not yet content, they went further, attaching – after their six exhibits – a written declaration from Butterick himself. In it, he agreed that the complained-about brief was “definitely double-spaced,” while conceding that line spacing is “often a source of confusion for lawyers.”

The source of this confusion? Software defaults.

Counterintuitively, when typing in 12-point font in a program such as Microsoft Word, choosing the “double-spaced” option doesn’t set the lines 24 points apart. Instead, the program chooses to space lines a bit more than that, in an amount that varies both by which version of Word one is using and by which font.

Thus, the typographic definition is not only more accurate but also more reliable. And it doesn’t require a litigant to license a particular word processing program to ensure compliance.

Judge Lipman basically agreed and rejected the complaining attorneys’ invitation to forbid 24-point spacing.

But she reminded the lawyers that “the last thing any party needs is more words on a page. The length of an argument is no guarantee of its success, and indeed could result in more confusion, not clarity.”

Derek H. Kiernan-Johnson, Teaching Professor of Law, University of Colorado Boulder

This article is republished from The Conversation under a Creative Commons license. Read the original article.