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Don't Forget the Footnotes

By Joseph Fawbush, Esq. | Last updated on

Lawyers will fight about a lot of things. It is, after all, what we're good at. In recent years, this increasingly includes word counts on briefs and other documents filed with the court. While brevity is the hallmark of a good legal writer, a lot of attorneys view jurisdictional word limits in documents submitted to the court like drivers do speed limits — as both a maximum and a minimum. It's led to several legal battles over word counts, line spacing, and the value of getting in an extra argument or two.


Attorneys for High 5 Games, the defendant in a class-action lawsuit, recently found out just how serious a violation of word count limits can be when they faced potential sanctions for exceeding it. Was it an accident? A nefarious plot to sneak in an extra argument? Let's explore.

Highlights of the Class Action Against High 5

High 5 Games is an online "social casino" that uses virtual chips in lieu of real money. Players can then cash out these chips for prizes. The class action alleges High 5 violates Washington gambling laws by forcing players to purchase more coins when the initial chips run out.

Does High 5 have the law on its side? Who knows. We haven't read the more than 9,000-word brief (including footnotes) filed with U.S. District Court Judge Tiffany M. Cartwright. But if we're talking only about the footnotes, neither has Judge Cartwright.

Just Blame Word

Lead attorney Jessica Smith, a partner at Holland & Hart, says she did not realize the footnotes were excluded from her official word count totals in Microsoft Word. She blamed this on Microsoft's sneaky default settings.

In addition, according to a declaration Smith filed with the court, opposing counsel did not inform High 5 that the word total exceeded the limit. Had they done so, she says High 5 would have offered to re-file, stipulated that the court could disregard the briefs' footnotes and conclusions, or allowed the plaintiffs to exceed the word count as well.

Judge Cartwright was a little skeptical, noting that it was "a little hard to believe" that an experienced attorney like Smith would make such an error. However, the two sides agreed that Judge Cartwright could ignore the footnotes, bringing the word count within acceptable limits and avoiding the need for sanctions.

Software Defaults Can Lead to Fights

All's well that ends well, but this is not the only legal kerfuffle that's arisen recently over software defaults affecting brief length.

University of Colorado Boulder Law Professor Derek Kiernan-Johnson recently wrote on a federal court case where line spacing was an issue. Instead of a brief with lines 28 "points" apart, the line spaces were 24 points apart (approximately 1/18th of an inch smaller). This allowed one party to get more lines on a page. Some jurisdictions still use page limits rather than word count.

The opposing party, outraged, asked the judge to force the opposing party to increase its spacing in future documents submitted to the court. This led to a 58-page reply brief arguing that "double spaced" referred only to line spacing double the font size.

The argument was successful, although the judge in that case noted (as should we all) that "the last thing any party needs is more words on a page."

Judges Say Size Doesn't Matter

While it is understandable to get frustrated if the opposing party doesn't stick to word or page limits in documents, it should be noted that using such tricks isn't likely to endear them to the judge.

As several prominent judges have noted, including this Supreme Court justice, a straightforward, clear, well-organized brief is much more effective than a lengthy one. And make sure you check the defaults on your word processing software before submitting it to the court.

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