Thursday, March 03, 2011

The Mississippi Rules of Advisory Procedure

From a pleading making the rounds:
Appellants first allege that ___'s brief violates M.R.A.P. 32(a) because of the use of single spacing in the body of the brief. ___ agress that the rule requires "double spacing between each line of text, excluding quotations and footnotes," but in the discretion of ___'s counsel, single-spaced text was used in parts of the brief because of counsel's opinion that these parts were easier to read and process in this format.

The majority of ___'s brief is double-spaced, and ___ used single-spacing in some part of the brief to emphasize or draw attention to certain points.
(Boldfacing added.)

Ah yes, the well-known "discretion of counsel" exception to court rules! Almost as well known as the use of single-spacing to increase readability or provide emphasis.

... The court refused to strike the brief in question or afford any other relief (such as resubmitting it in rule-compliant format), so I guess the rules *are* merely advisory.


  1. At some point in the late 1980s, when courts were just beginning to be aware that lawyers could manipulate font size and line spacing to get more words, I filed a brief in the Sixth Circuit. I had created the brief in Microsoft Word, it was rule-compliant if you looked at the formatting choices in the software, and I'm absolutely sure it would have been accepted by the Fifth Circuit because I used a template that I used then for Fifth Circuit briefs.

    The clerks office sent it back. I looked at it and could not figure out how I had failed to comply with their type/facing local rule. I called the clerks office. It turns out they used a printers rule to measure point size on every brief, and (regardless of what Word told me), the fonts and line spacing were a fraction of a point smaller than the rules required. I got a printers rule. The only way I could make the damn thing comply was by forcing Word to make the fonts and spacing a fraction of a point larger (at least according to the software) than the rules required. They accepted that brief.

    That printers rule is still somewhere in my office...

    I'm not sure this story is completely relevant to your post, but your post provoked it in any event. Back to the current brief-writing project.

  2. Happily, the clerk's offices are more tech-savvy now, in the federal appeals courts at least.

    The MSSC really needs to move to character-count limits, which would foil such additional tactics as the 55 footnotes in the brief in question ....

  3. Anderson, I think Scalia and Garner urge the use of character counts, in the hope that attorneys will use bigger and more readable type. In particular they hate Times New Roman, which they say is designed to squeeze as many words as possible into a two-inch wide newspaper column, and becomes particularly unreadable at smaller sizes on full-page width.

  4. Very true, Reb. Nonetheless, I use Times NR (or CG Times here of late), simply because I don't want my font to stand out. But I use 13-pt for body and 12-pt for footnotes, whenever possible.

    Philip Thomas's post on the book Typography for Lawyers is good, as is the author's website. I learned some stuff.

  5. Really is that all lawyers and judges think about? In fact, I know federal judges have their rules of court. If incompetent lawyers can't read the rules, then . . . .?

  6. Anonymous, I'm not sure what your post addresses. Typography is important, whether or not it is addressed by the rules. Most lawyers do not think about typography at all. Garner and Scalia say they suffer for it.

    As for the "reading of the rules," they can be confusing. Unlike some states, the Mississippi Supreme Court posts no examples of what they want briefs to look like. As someone who filed a first brief recently, it didn't happen easily.

  7. Aww, too bad, Rebelyell, I feel for ya.

  8. Rebelyell, I woulda sent you a form brief!