The Perverse Incentives of Page Limits v. Word Limits

With page limits, advocates are drawn to footnotes, which are single-spaced, in a smaller font, and take up less space.

|The Volokh Conspiracy |

Some courts impose word limits. Other courts impose page limits. I do not like page limits. Crafty attorneys can use various methods to adjust the page-count. For example, they can tweak justification, page breaks, end-of-line hyphenation, and other elements to make a document take up less space. Of course, the most blatant trick is to bury stuff in footnotes. Footnotes are usually single-spaced, and in a smaller font. I'll admit that I've used this approach in the past when I was running up against a word limit. The nature of a page limit creates this perverse incentive. I much prefer word limits. That number measures everything you write, regardless of the spacing and formatting issues.

Recently, Judge Boasberg (DDC) struck a brief "for violating the Court's Local Rule on excessive footnotes, particularly given the length of the footnotes."

This brief was filed by the DOJ Federal Programs Branch. There were twelve footnotes. The longest was seventeen lines! Far short of a #TillmanPage, but really long for a legal brief.

I suspect Judge Boasberg may have been miffed by DOJ's practice before, and wanted to send a message.

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  1. Attorneys who have to worry about either word or page limits should consider simplifying their style. Both are usually plenty generous.

    1. You are right 98 percent of the time.

      I did run into one circuit’s rule a few years ago, which effectively allowed me 10 pages for a reply brief in a very complex appeal. The Appellee’s Brief deliberately raised all these alternate grounds of affirmance that were barely touched on below. It was a very, very difficult situation- and of course, motions to file an oversized REPLY brief are almost never granted.

      1. Once a federal district judge gave me five pages within which to challenge the constitutionality as applied to my client of ERISA’s Multi-Employer Pension Plan Amendments of 1980. It wasn’t a great argument, but before bringing us the case the client had let lapse the deadline for challenging the merits of the administrative determinations against it. I handed in an outline of a brief with citations and had to work to keep that within the five pages, which included the signature block, etc.

      2. The remaining two percent of cases in which page limits constrain good advocacy consist of responses to Celotex based Rule 56 motions in which the nonmovant has the burden of production on the underlying issue at trial, the movant claims the nonmovant lacks sufficient evidence to meet its burden of production and create a genuine dispute of fact, and the nonmovant must respond by providing a statement of all supporting material facts that demonstrate with appropriate record citations the evidence it can offer in a form that is admissible or that can be reduced to admissible evidence at trial. When the nonmovant seeks to prove its case by circumstantial evidence, or by evidence admissible under a hearsay exception that requires proof of the unavailability of the declarants, the statement of material facts, as well as the memorandum in opposition to summary judgment, can consume many pages just in establishing against all hypothetical objections why the evidence would be admissible and why, if admitted, it gives rise to a genuine dispute of fact. And all that has to be done in a two week response window at a time chosen by the moving party rather than set months in advance by a scheduling order.

    2. Nah, the problem is that word & page limits apply equally to complex and simple cases. Judges should set a page/word limit assuming every case is simple and then be generous when granting exceptions for complex cases.

  2. I’ll admit that I’ve used this approach in the past when I was running up against a word limit.

    I’d say that I think you meant page limit, but I don’t get the impression you read these comments.

  3. My legal methods prof. was absolutely obsessed with word count, and I believe we students suffered for it.

  4. I just read an article the other day which had a footnote span more than entire full page!! There was a page with no body text, only a footnote continued from the previous page. Absurd. If I was a Judge and saw that in a brief, you should be concerned about my ability to remain impartial.

  5. I much prefer word limits, which are the norm in federal appeals. I rarely come anywhere close to the limit, whereas page limits are often a problem.
    And yes, using word limits avoids all kinds of lawyerly chicanery. Footnotes are only used for truly marginal issues, not for shoving arguments into single-space, smaller text.

    1. using word limits avoids all kinds of lawyerly chicanery

      Perhaps, but those familiar with the dart arts of word processing can still game the system.

  6. Most of my undergraduate papers were no longer than I could get away with. Even so, I recall one I desperately wanted to develop more fully, but I ran into a strict page limit. The prof said endnotes did not count in total pages.

    Accordingly, my paper was five pages of topic sentences, each developed further in an endnote. I don’t recall that he docked me for that, though I don’t think he was terribly impressed with the paper.

  7. Word limits are no problem for anyone who has mastered German though…

  8. Well, it’s nice to know that lawyers annoy lawyers (of which judges are a sub-set) with their rules-lawyering as much as they annoy the rest of us.

    Or to put it another way… sounds like a self-inflicted wound in your profession. You do not have my sympathies.

  9. My objection to page limits is how I lose a whole line when one letter or extends the length of a paragraph to the next line. I’m not sure trimming really enhanced either the readability or conciseness of my point to get that line back.

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