Friday, July 6, 2012

FRIDAY GRAMMAR RODEO PRESENTS: HOW MICROSOFT CHANGED THE LAW WITHOUT THE LAW EVEN KNOWING IT: [Now with embarrassing math error corrected] This started as a post about Microsoft Word’s irritating choice of default header styles – take a font that nobody uses (Calibri), use a color that nobody uses (blue), default to a font size that almost nobody uses (14-point), and make sure that it clashes with just about every other typographical choice a person could make. But running that conundrum down crashed me headlong into another discussion I had last week with both Spacewoman and a colleague: what does "double-spacing" mean? Allow me to borrow a phrase from the teasers for the 11:00 local news: the answer may surprise you.

For those of us who are lawyers, the gist of the double-spacing problem is this: Long ago, judges realized that lawyers can’t shut themselves up unless they’re told to shut up. So courts required the use of standardized typographical conventions: pica, or 10-character, monotype spacing; double-spaced lines; minimum margins; maximum page limits.

Then, in around the late 1980s, the availability of proportional-spaced fonts in word processing programs necessitated revisions. Courts amended their rules to allow proportional-spaced fonts, but required a minimum point size (usually 12-point), and kept the double-spacing requirement. Times New Roman became the default font for most lawyers, in part because it was Word’s default font, and in part because, as the slenderest of all the normal-looking proportional fonts, it allowed the most cramming of surplus words into a brief.

Since the advent of proportional fonts, some courts – notably the Seventh Circuit, though it is not the only one – junked the point-size/double-spacing/page limit formula, recognizing that lawyers’ orthographic gymnastics, all in the service of legal word-cramming, were making briefs difficult to read. Most courts, though, have stuck with the old formula.

Then along came Word 2010 (or 2007? I can't tell). That program presumably was built in part by people who understand that word processing software is a tool with many uses, and that, if it is going to retain its near-monopoly on the reduction of thought into more-or-less formal written English language, it needs to do a lot of different things, like bullets and boxes and lists and wraparounds for pictures and page numbers and Greek letters and zapf dingbats and all kinds of whatnots.

But the program also was written, and this is important, by some people who wanted other people to write better. Not better in the sense of better grammar and clearer ideas, but better in the sense that if you squinted your eyes and saw the words as objects instead of meanings, what was on the page would look prettier. And that meant value judgments. A blue heading that is way bigger than the text is a better kind of heading. Headings that are all different sizes are better at conveying decreasing hierarchies of headingness. A little more white space is better than blocks of grey, except when the white space comes in between grey blocks that are the same kind of grey blocks, in which case that white space: verboten.

The people who made these value judgments are not lawyers. They are people who, in large part, view typography as an equal partner with words in conveying meaning. And they have their place. They probably are great at writing pretty books like Microsoft Word 2010 Users’ Guide, a book that, if I recall correctly, has pretty blue headings that are larger than the default text size, and lots of pleasant white space all over the page. And that pretty little book is also about ten fucking thousand pages long.  It is not a book whose author appears the least bit concerned about page limits. 

Some of the decisions Microsoft made for you are optional. With great effort, at great personal cost, and with a sense of great affront to your Microsoft font-rabbis, you can restore your default font to tiny little Times New Roman and change all your headers to the same font and color and size as your text. You can adjust your white spaces. But there is one thing those Microsoft Word schoolmarms did that you cannot undo: they changed the meaning of the double-space.

You see, when, in 2007, Stuart J. Stuple – a Microsoft program manager whose “background is in book publishing and education”; see, a schoolmarm who wants you to format like book publishers – was working on changes to Word, he explained Microsoft’s "new spacing" in Word 2007 (which carried over into Word 2010):
We also added a bit of space between each line within the paragraph. Though some folks have described this as "double-spaced," it is actually 115% of the line height (double-spaced would be 200%). You could call this one-and-about-a-sixth spacing if you’d like.
Pay close attention to what Stuple said here.  "Double-spaced would be 200%" of the line height, so double-spacing for a line of 12-point font would be 24 points, and single-spacing would be 12 points.  But "one-and-about-a-sixth spacing" didn’t look great in a pull-down menu, so some programmer or manager decided that it was just as easy to call it "line spacing > single." And twice that – which you could call "two-and-about-a-third spacing" if you’d like – became "line spacing > double."

Remember our courts, though? The ones who have local rules – i.e., things that, for lawyers, are essentially laws – requiring briefs to be "double-spaced"? Stuple’s and his Microsoft book-publishing schoolmarm colleagues' decision to add 15% more white space to the double-spacing format meant that lawyers who selected "line spacing > double" from the Microsoft Word drop-down menu could now cram 15% fewer words into their briefs.

This creates a law-school-exam-worthy interpretation problem: textualism or originalism? Is a local rule a living document? What would Hart say to Fuller, Scalia to Wittgenstein? And with the benefit of this history, it would be easy to say (as I say every time I write a brief), "no matter what Microsoft Word says, single-spacing in a 12-point font is 12 points, and double-spacing is 24 points." But courts don’t bother with the history. They’re busy, and they’re judges, and judges are lawyers of a particular stripe: they don’t see white space as a value judgment; their job is to take words and pretend that those words are invested with a fixed and immutable meaning. And for a judge with a distaste for word-cramming, it’s very easy to decide double-spaced means "line spacing > double." As at least one judge has.

So in at least one courtroom, and perhaps in others, Microsoft’s and Stuple’s prescriptive judgment ("white space looks better") has robbed lawyers of millions upon millions of words, nearly a sixth of their arguments and analogies and string-cites and invective.  Fifteen percent is a large number, felled only because some people who do not practice law think that other people who mostly do not practice law should write pages that look more like books.   

And this result, if it were applied universally, would render many courts’ rules self-contradictory. Take the Central District of California, for example. This is not an insignificant court. It is one of the most populous jurisdictions in the country (New York City at least is split into different courts), and it happens sit atop the headquarters of an industry (and a concentration of others) whose major disputes often are exclusively federal. The Central District has somewhat unusual rules: it demands double-spaced 14-point text (which looks juvenile) and line numbers down the side of the page. But the Central District also says that it permits "no more than 28 lines per page." To get 28 lines of 14-point text onto a page – including the 28 line numbers that the Court requires – one must use 24-point spacing, which is less than even true double-spacing. Yet Microsoft’s "line-spacing > double" option would yield approximately 36-point spacing, allowing about 21 lines of text per page (with one-inch top and bottom margins) – a full quarter fewer lines than the court apparently intended (though one still couldn't get the intended 28 lines with true double spacing).

The only sensible reading of these rules (though one that still wouldn’t fix the Central District’s problems entirely) would be to ignore what Microsoft says "single" and "double" mean. "Single" means that the line spacing is equal to the point size. "Double," as Stuple himself acknowledged, means the line spacing is twice the point size. This would not cause any problems. Contrary to popular belief, a 12-point font with 12-point spacing would not result in the lines touching each other. Try it out – it looks just fine. And 24-point spacing looks better than "line spacing > double," which was solving a problem (insufficient white space in single-spaced paragraphs) that never even existed for double-spacing. But now, thanks to Stuple, Microsoft, drop-down menu economy, and one Manhattan judge, we’ve apparently ceded decisions concerning how much lawyers can say to a company who, as we already knew, doesn’t understand what lawyers do.  Microsoft has taken nearly a third of my words, and I want them back. 

Incidentally, this post was written without page limits.


  1. Craig8:14 AM

    Bad Microsoft. No cookie.

  2. Alternatively, you could just write a shorter brief.

  3. Joseph J. Finn8:27 AM

    So what if you use Wordperfect, TextEdit, OpenOffice or some other word processing software?

  4. spacewoman8:28 AM

    On the other hand, law *students*, who are used to using Courier to try to get their papers up to a 25 page minimum, are big fans.

  5. Matt Thompson8:43 AM

    Or why not use LaTeX. I can't believe there's not a style out there for law briefs. And (La)TeX can be quite strict with spacing, et al.

    It'll look better than Word too.

  6. isaac_spaceman9:14 AM

    A lot of times, yes.  And a lot of times generalizations like this are just frustrating. 

  7. Not a lot of times. Every time. I can't think of a single time in my practice where writing up to, or even near, the page/word limit was necessary or advisable. Long, bloated briefs are invariably terrible briefs.

  8. Clearly an erroneous decision by Judge Englemayer.  Fross Zelnick Lehrman & Zissu should appeal.  The alternative is subordinating court adminstration to software defaults and the arbitrary labels applied to them by developers.  paragraph --> spacing --> line spacing: exactly; at: 24pt is correct.  Also, it will set the new world record for stupidest most irritating time and money wasting appeal ever.

  9. I'll just note that my pulldown menu (on the ribbon, ugh, in Word 2010) has the following spacing options: 1.0, 1.15, 1.5, 2.0, 2.5, 3.0.

    If I go into the paragraph menu and choose from the pulldown menu there, the options are instead "single," "1.5," "Double," "At least," "Exactly," and "Multiple." Single gives me the same thing as 1.0 on the pulldown menu (i.e., not 1.15).  Double spacing (whether from the ribbon, choosing 2.0, or from the paragraph menu choosing "Double" gets me something like 28 pt., which I tested by setting a paragraph to "exactly" 28 pt.; it's close enough to Word's version of double-spacing that I think they're using 14 pt for "single" and double that for "double" -- which is what I learned to do when I was doing typesetting. It's not what you get on a typewriter, which is where we get 24 pt. = double for 12 pt. font, but it's what typesetters have been doing forever.

    Finally, you can also always go into the paragraph menu and set spacing at "exactly" 24 pt. At my old (big) lawfirm, the automatic in-house templates had this as the default spacing.

    From what you've written, I think you're using Word 2007, which was the first version with the ribbon. It would not surprise me to know that Microsoft has made some changes since then to address some of these problems.

  10. spacewoman9:57 AM

    Say what?  How is a 25 page brief, or a 15 page reply brief, in 14 point double spaced font, necessarily "bloated" and "terrible?"  If you have a noncontroversial issue -- like a very basic discovery motion -- then ok, but if you're writing a motion to dismiss for an antitrust case in the complex litigation court, chances are you have a lot of issues to discuss.

  11. I'm absolutely sympathetic to judges who want to put limits on verbosity (we lawyers are a verbose people) and who want papers formatted in an easy way to read, but isn't the solution to adopt a word count rule (as exists in FRAP 32) and adopt by individual practices whatever formatting matters the judge wants?  Seems that's a lot easier and gets rid of arguments like what the meaning of "double spaced" is in terms of compliance/length.

    Also, at least in SDNY/EDNY it's still very common for jury instructions to have be submitted in WordPerfect Format on a 3.5" disk because the computer systems in a number of chambers are still on that system.

  12. sconstant10:46 AM

    I don't know why, but I found this to be a kind of related story, about how MSFT's ubiquity and the backlash:

  13. isaac_spaceman10:48 AM

    Chad, there are three ways to respond to your argument.  The first is to point out the logical fallacy.  If every brief can be cut, then every brief can be cut again.  If a 15-page brief can be cut to 12 pages, then that 12-page brief can be cut to 10, and that 10-page brief can be cut to 8, and eventually you're going to end up with a caption and a signature page and nothing else.  Of course you don't believe that.  So that means that there is a point in every brief beyond which cutting makes the brief less persuasive.  Where you find the border between cutting fat and cutting meat (and cutting bone) may vary, but you have to admit that it is there.  And then you have to admit that not all briefs are the same.  It is just not the case that there is no argument that merits longer than 15 pages, or 25 pages, or even 50 pages. 

    The second way is to appeal to experience.  I am sure that you are an effective brief writer.  I am also an effective brief writer.  What should we make of the fact that your experience differs from my experience?  Perhaps we work in different fields of varying complexity, or we have been stuck with different types of opposing counsel, or we work on different sides of the table, or one of us has had more varied experience than the other.  But I cannot imagine that if you had the same cases that I have had for the last 15 years, you would never have had any occasion to write up to, or even near, the page/word limit.  Take, for example, the rules in one court in which I am currently practicing.  For summary judgment, there is a 27-page limit, and that includes the caption, the notice of motion, the fact section (there is no allowance for a separate statement of facts -- all facts must be included in the brief itself), and the signature block.  My case involves an evolving course of conduct over twelve years by eight different defendants.  I would be surprised if you thought you could write an effective summary judgment motion for either side in that case without writing up to, or even near, the page/word limit. 

    The third way is to appeal to facts.  While I have written many briefs that did not approach the page limits, I also have written many long briefs.  Some of those briefs were quite good.  They were not "invariably terrible," and, despite their long-ness, they were not even bloated.  I suppose I won't convince you of that, the same way that you won't convince me that there is never an instance where shortening a brief will make it more difficult to understand, but at least I said it.   

  14. isaac_spaceman10:52 AM

    No, I'm using Word 2010.  I am capable of making everything 24-point spaced, but my point is that some lawyers and at least one court think that is cheating, because typesetters thing that 28-point spacing is what "double" is.   

  15. christy in nyc10:57 AM

    There must be some lawyerly reason I don't know about that prohibits limiting the word count instead of page count?

    Maybe I'm still irked at my college TA who scolded me for trying to make my paper look longer with "big margins" (AKA my computer's default margins) when the assignment was for "no more than 300 words" and my paper was 299 words.

  16. I should also note that I've seen efforts to evade the word limit with things such as a 4 page "table of abbreviations" that purportedly doesn't count as part of the brief for that purpose.

  17. I am an appellate attorney, living under the Federal Rules of Appellate Procedure, so I most typically am concerned with word limits. 

    Frankly, I don't think that there is a problem with a court demanding readability.  When I was a district court clerk, we'd periodically get briefs that patently were trying to evade the page limits---small margins, very little space between lines, small footnotes, etc.  It was awful to have to read those things, and I think that those tricks made the briefs less effective.  You want your briefs to be easily understood, and making them hard to read does not contribute to that. 

    I also think that page and/or word limits---as long as there are "escape valves" for appropriate cases---tend to lead to better briefs.  Many lawyers are verbose, but word and page limits force us to organize, clean out our blathering, focus on the facts and arguments that are really important, and present cleaner arguments.  Longer briefs are often harder to read, more meandering, and more likely to cause a judge or clerk to lose focus. 

    That's not to say that there aren't cases that require a longer brief, e.g., where there are multiple parties involved, lots of facts, or a large number of legal issues.  But, to me, that doesn't mean that courts shouldn't have meaningful rules designed to make briefs readable (spacing requirements, etc.) and more manageable (word/page limits).  It means that courts should be open to loosening the word/page limits in appropriate cases.

  18. isaac_spaceman11:31 AM

    Agreed on all of this, but my point was not to criticize page limits (with "escape valves" for appropriate cases).  It was to point out that courts decided what the appropriate page limits were, and then Microsoft Word changed them without anybody realizing it. 

  19. I must concede that I do not have to work within the constraints that you describe.  I practice mostly in state court, where our appellate court allows 50 pages/11,000 words, not counting caption, signature block, etc.  I would indeed find it difficult to confine your argument to 27 pages.  And I know, from reading your posts over the years, that you are an excellent writer.

    I probably took out on you my frustration with the drek I see many days from opposing counsel, who say in 20 pages what could easily have been said in 10. The rules you are working under now, of course, are a reaction to bad attorneys who went before you.

    I remain vehemently opposed to lengthy briefs.  But I should have not been so strident as to state that long briefs are invariably bad, or that you should always write a shorter brief.

  20. isaac_spaceman11:40 AM

    Lawyers don't use Word because it's the best program -- we probably don't know what the best program is.  We use Word because we need a standard.  We can't make personal choices with our software.  I have to use the same program as all of the other lawyers, paralegals, secretaries, and assistants in my office.  And I have to share my briefs and trade edits with lawyers from other firms, including government lawyers.  There is a value to having a standard and making the standard better, rather than having no standard and just picking the best option. 

  21. But I recall that, using Word at my first post-clerkship job (2000-03), it was a known fact that "exactly 24-point" got you more lines per page than "double-space."  Perhaps it is somewhat worse now---I don't recall the number of extra lines you got back then---but this is a long-standing feature with Word. 

  22. isaac_spaceman12:57 PM

    So I think we agree that if one can write a shorter brief without compromising the clarity of the argument or eliminating worthwhile arguments, then one should write that shorter brief.  I think I have just seen more examples than you have of briefs that need to be lengthy.  It takes a good lawyer and hard work to make a long brief read crisply and clearly (just like it takes a good lawyer and hard work to whittle briefs down to the right length), but that's why people sometimes need good lawyers. 

  23. isaac_spaceman1:01 PM

    That may be so.  But the basic fact is that 12-point spacing (which I use for block quotes and footnotes) looks just fine, and if you double that, you get 24 points.  The readability/white space problem exists only in single-spacing.  True double-spacing (i.e., 24-point spacing) gets you plenty of white space, and it's easily readable.  There is no reason to turn 24 into 28, or, for the love of pete, to turn 28-point spacing (true double-spacing in a 14-point font) to 32 or 36 or whatever it is. 

  24. Benner1:17 PM

    I like it, but word counts have one advantage and disadvantage in that they treat footnotes equally to the text.  The advantage is that it keeps lawyers from just using the footnote to make the brief "longer," which should be discouraged.  The disadvantage is that some points truly are parenthetical and with footnotes versus in-text citation, they can be rendered as such visually.  

  25. bill.4:10 PM

    This is unclear from the question and the answers -- you people are using templates aren't you? Because it sounds like everyone is just opening Word and for every single document just fixing the default headings (or worse, every style is just modified Body), and if you need a bullet or a number clicking the ribbon. Because if that's what you're doing, you're insane. If all your documents are defaulted to, that is a disaster waiting to happen.

  26. pfrduke4:41 PM

    While I share the frustration with "double spaced" in MS Word not actually being a normal double space, it's worth mentioning that Judge Englemeyer did not rule that his (or the S.D.N.Y.'s) rules required the use of line spacing -> double.  All he did was grant a party 5 extra pages in an opposition brief.  And the party asked for those pages for two reasons, only one of which was the "misuse" of line spacing -> exactly 24 pt.  The other reason - I need more pages because my opponent raised a whole bunch of arguments I need to deal with - sometimes (although certainly not always), before certain judges, is enough on its own to get extra pages.  So courts (to my admittedly limited knowledge) have yet to rule that Microsoft's alteration of the standard double space requires use of the new format in briefs going forward.

  27. Jesus, sometimes I'm really glad I'm not a lawyer. When Word fights me, I just go to my boss and say "I couldn't get Word to do the thing you like with the script. It's an asshole. It hates me." And my boss agrees, and then tells me a story about how Word screwed him over that one time.

    And then we get something to drink, and talk about that ugly dress that actress wore to her premiere the night before, and how the beading on it was clearly done by underpaid children and that's sad, but it was really awful, and the design looked like giant arrows pointing to her vagina, and that maybe some of the beads were precious stones, and that's insane. Also, that she matched her lipstick to one of the beads was nutso, and it made her look like a crazed hooker clown. 

    Our minutiae may be different from Lawyer Minutiae, but we feel burdened by it, as well. I mean, who else is going to tell this poor girl she looks like a crazed hooker clown? Not her friends, clearly.

    (note: I have never actually said anything like this about anyone famous anywhere I've worked. That would be mean. But having this window into LawyerWorld is fascinating. You guys are amazing for living that dream. I'm gonna stick to what I know, which is, um, different.) 

  28. Dr. Weevil10:54 AM

    So why not use an older version of Word? I'm still using Word 2000 at home, and whenever I have to use Word 2007 or 2010 or whatever it is at work, it pisses me off. I have never been able to find some of the features I need, and absolutely nothing added in the newer versions has ever, ever been of any use or interest to me. Plus I've forgotten how I deleted the damned talking paperclip at home, but it is deleted at home, and still there at work, and with the networking would probably reappear at logon even if I managed to delete it.

    I try to get all my writing and editing done at home. I teach public school in the Shenandoah Valley, so working at home is part of the job, and surfing the web between classes is a lot more relaxing than preparing assignment (or grading them) anyway.

    How easy it is to 'downgrade' Word 2007 or 2010 to 2003 or 2000, I do not know, but it must be possible. At worst, you could certainly uninstall the one and reinstall the other. Of course, you'd have to do a 'Save as Word 97/2000' on all your .docx files first, to make them readable as .doc files, so there would be transition costs. But is there any other reason not to use the older versions?

  29. I don't know about lawyers, but as a freelancer, many of us use our own computers, and have to make do with whatever version of Word we currently own. More importantly, though, we're held up by whomever is LEAST competent on their computer, especially if that person is senior in the company. If you're emailing a document to a boss, and that boss has only recently mastered opening his/her email, you better be DAMN sure that document will open on their computer, because they will NEVER figure out what's wrong on their own. The reverse of that is also true. I had to get a friend of mine at work to convert all the docs coming from my boss, because he had no idea how, and I couldn't open them on my old computer.