Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Wednesday, September 17, 2014

BP Counsel Fiddles With Line Spacing in Federal Filing

This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.

After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:

"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."

Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.

A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests. 

I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?

 

Hat tip to reader Maryanne Heidemann

http://lawprofessors.typepad.com/appellate_advocacy/2014/09/bp-counsel-fiddles-with-line-spacing-in-federal-filing.html

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Comments

I'd like some actual proof the document was not double spaced. I note the judge did not offer any support for the claim that a double spaced document would only have 23 lines per page.

Posted by: pc | Sep 17, 2014 12:24:26 PM

If the court wanted to limit how many lines appear on a page, it should have done that. At the very least, it should define what it means by "double spacing." *Double* spacing is a line twice the size of text. For 12-point text, that's a line 24 points high. A page of 12-point Times New Roman text with 1-inch margins at 24-point line spacing has 27 lines. Using Microsoft Word's wider "double" spacing, which is actually 233% line spacing (that's more than double, or 200%) produces a page with 23 lines. All that said, the best way to limit the length of a filing is a word limit. The court needs to get its facts straight before admonishing lawyers for such a minor thing. And NPR should understand what's going on before filing a story comparing BP's lawyers to school kids.

Posted by: Josh Tatum | Sep 17, 2014 12:55:02 PM

Pages 139–141 of Matthew Butterick’s _Typography for Lawyers_ describe Microsoft Word’s “peculiar line spacing math,” and the same information can be found on Butterick’s Practical Typography at http://practicaltypography.com/line-spacing.html. In fact, Mr. Butterick specifically recommends using *true* double spacing on page 204 and says to “set your line spacing to exactly twice the point size of the body text,” which in the case of 1″ margins gives 27 lines per page. As Mr. Tatum pointed out above, the problem here is that Judge Barbier is ignorant of the fact that for some reason Word’s “double spacing” is not in fact double spacing—it adds extra space. BP’s brief was perfectly compliant with a rule requiring double-spaced text.

Posted by: Robert Ralston | Sep 17, 2014 2:56:14 PM

When I was in practice this kind of thing wasn't common, but it wasn't that rare, either - often we just adjusted to "true" double spacing, but sometimes we'd go a little further. Usually, no one got called out over it, but a few years ago there was this: http://www.abajournal.com/news/article/patterson_belknap_wins_more_pages_in_line_spacing_spat/

Posted by: Ann Lipton | Sep 22, 2014 1:23:04 AM

I'm with Josh. The word limit is the only efficient way to avoid mistakes by a judge, curb silly tricks by litigants, and let people format things better. I don't see any reason even to require double spacing. Books aren't double spaced, and for a good reason: single spacing reads better.

Posted by: Michael Orenstein | Sep 22, 2014 12:28:07 PM

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