Heated Litigation Fight Over 'Double-Spacing' Ends In Judge Telling Everyone To Shut Up
Biglaw attorneys launch fight over spacing and everyone loses.
How often do you think about the meaning of double-spacing? If you’re like most people, the answer is never. But, if you’re the lawyers from any of the 15 law firms in Jones et al v. Bain Capital Private Equity et al, an antitrust suit in the Western District of Tennessee, the subject has occupied every moment of your existence since mid-October. That’s when the defendants, represented by Cleary, Baker Donelson, Locke Lord, and Butler Snow filed their Motion to Require Adherence with Formatting Requirements of Local Rule 7.1, charging the plaintiffs with the dastardly act of gaming the double-spacing mechanism!
But, the plaintiffs would counter, what does “double-spacing” even mean anyway?
A full 66 pages of digital ink will be spilled on this question and this is why lawyers can’t have nice things.
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The defendants note:
Local Rule 7.1 requires that, in papers presented for filing, “[l]ines must be double- spaced, except that quotations may be indented and single-spaced and headings and footnotes may be single-spaced.” LR 7.1(b). All widely-used word processing programs, including Microsoft Word, Google Documents, and Apple Pages, use 28 “points” of spacing when set to double-space lines.
They forgot Word Perfect, which still — somehow — exists!
In the process of preparing replies in support of Defendants’ motion for summary judgment, Defendants discovered that Plaintiffs have with regularity overrode the standard double-space setting and instead spaced lines 24 points apart. This has enabled Plaintiffs to have approximately 27 lines on each page, rather than the approximately 23 lines per page that would result from formatting using standard double spacing. By doing so, Plaintiffs gained approximately 7 and a half additional pages for their statement of additional facts and approximately 17 additional pages for their legal memoranda opposing summary judgment.
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Despite the alarmist rhetoric of the motion, attorneys for the plaintiffs responded by getting literal:
Plaintiffs’ Opposition brief employed 12-point font and 24-point line spacing. That is double-spacing. Plaintiffs complied with the rule requirement as that requirement is widely and broadly understood.
Ideally, the response would end there. Instead, plaintiffs provided 58 pages of material. Probably would’ve been shorter if they used 28 points.
They even threw in some originalism to bolster the textual argument:
But as Plaintiffs’ typography expert explains, “double spacing” has an objective meaning, derived from the historical precedent of the typewriter: it means line spacing that is double the size of the typeface font. That interpretation makes common sense, finds historical support, and does not require litigants to purchase a license to specific commercial word-processing products or to be subject to the vagaries of the software over time.
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The brief backs up the vagaries over time point by noting that Microsoft even expanded its spacing before the 2007 version release and that the company’s “double spacing” is not even consistent across fonts.
There’s not been a historical account of typography this thrilling since that Helvetica movie!
Not content to leave well enough alone, plaintiffs pile on with policy arguments for their interpretation of double spacing.
Second, Defendants’ interpretation of the rule would provide for significant formatting gamesmanship, because there are numerous word-processing programs, and each may (and often do) apply a different “double” line spacing formula….
Third, and perhaps must fundamentally, the Local Rules of courts should not require the use of any specific commercial product, such as Microsoft Word.4 Access to courts is a fundamental right. And access to courts should never be conditioned on using a particular commercial product. If courts mandated line-spacing based on the behavior of any specific word- processing program, access to courts would be conditioned on purchasing a license to that program.
They even found a case imposing sanctions on a party for trying to argue that double spacing means the Microsoft default:
At least one court has granted sanctions against a party for raising such an argument. See Focally LLC v. Win Elements, LLC, No. EDCV 21-2105 JGB (KKx), 2022 WL 19827474, at *6-8 (C.D. Cal. 2022) (holding that a defendant’s motion to strike a plaintiffs’ opposition for using 24-pt spacing rather than Microsoft Word’s proprietary “double” line setting was subject to sanctions, because not only was it “objectively baseless” since 24-pt spacing is double-spacing, but also because “the real problem with Defendants’ filing is . . . the sheer audacity of advancing such a meritless argument”).
I’ve not seen a case more magically back up one side’s argument on a completely bonkers, hyperspecific set of facts since Varghese v. China Southern Airlines Co.. Ltd. And that case doesn’t actually exist.
YET THIS DOUBLE SPACING SANCTIONS CASE ABSOLUTELY EXISTS!
Still, Chief Judge Lipman wasn’t in the mood to impose sanctions as much as she just wanted everyone to shut the hell up. After denying the motion without taking a definitive stance on double spacing, Judge Lipman writes:
The Court further notes that the last thing any party needs is more words on a page. [FN: Indeed, Plaintiffs’ twelve pages worth of prose, two declarations, and multiple other exhibits filed in opposition to this Motion, while interesting, displays both sides’ tendency toward overkill.]… Moving forward, the Parties are encouraged to spend their valuable time focusing on the merits of this case, and certainly not figuring out how many sometimes-useless words will fit on a page.
Hear, hear. Now we can put aside the needless sniping over the meaning of double spacing and get back to an important issue: plaintiffs correctly only using one space after periods while the defendants use two like it’s 1957 or something.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
