The Last Word—Sometimes Useless Words Are Worse Than Meaningless

Is a longer argument better than a shorter one? Or a longer contract? How about a longer will or trust? For example, I have reviewed revocable trust agreements with similar dispositive goals drafted by estate planning attorneys throughout the country that range from under 10 pages to over 60.

According to the online will preparation service USLegalWills.com, the typical will is at least four or five pages long. So, is a 40-page will necessarily better? There is no categorical imperative here, but when it comes to word count, perhaps there is a lesson or two to be learned.

In a recent case, a significant dispute arose over the formatting of documents, with one side arguing that the other’s court filings violated the court’s local rule that all lines must be double-spaced, except for indented quotations, headings, and footnotes. According to the court’s ruling, the party challenging the filings claimed:

[A]ll widely-used word processing programs, including Microsoft Word, Google Documents, and Apple Pages, use 28 “points” of spacing when set to double-space lines, but, [sic] Plaintiffs have been using twenty-four points between each line. Defendants contend that the spacing of Plaintiffs’ documents has allowed them to include approximately twenty-seven lines on each page, rather than the twenty-three lines per page that results from “standard double spacing.” Defendants request that Plaintiffs be ordered to use the default spacing for Microsoft Word, Google Docs, and Apple Pages “to ensure a level playing field going forward.”

Jones v. Varsity Brands, LLC, No. 2:20-cv-02892-SHL-tmp (W.D. Tenn. Nov. 14, 2023) (Order Denying Defendants’ Motion to Require Adherence with Formatting Requirements of Local Rule 7.1) (citations omitted). The court denied the motion and concluded that the length of an argument is no guarantee of its success and indeed could result in more confusion, not clarity. The judge admonished the parties and “encouraged [them] 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.” Id. at 3. Further, the order advised that the “last thing” any party needs is more words on a page. Id.

More isn’t necessarily better. Crafting an articulate, pithy document requires crystal-clear thought. Too short, and important provisions can be omitted; too long, and key points can become muddled. Effort is required to achieve precision at an ideal length.

But the Varsity Brands case also points out another lesson, particularly for writings intended to be persuasive. Overwording (a term I just made up) can raise doubts about intent. Queen Gertrude observed in Hamlet: “The lady doth protest too much, me thinks.” Act 3, Scene 2. Lady Macbeth’s protestations of love and fidelity perhaps were too excessive to be believed.

Let’s return to the Varsity Brands pleadings dispute. In the first footnote to the Order, the judge notes, with a bit of wit—or frustration:

Reading between the slightly larger spaced lines, it appears that Defendants initially raised this issue in an attempt to extend their time to file a reply in support of their Motion for Summary Judgment. On September 28, 2023, counsel for Defendants sent an email to Plaintiffs’ counsel pointing out the spacing issue and stating,

Please advise if you will agree to a joint motion seek ing an order allowing Plain- tiffs to refile their sum mary judgment papers in full compliance with Local Rule 7.1(b), extending Defendants’ reply dead line to two weeks after Plaintiffs’ resubmission, and allowing Defendants 50 pages to allocate across their reply briefs. If we can not agree, Defendants intend to file a motion to strike Plaintiffs’ summary judgment submissions seeking the same relief filings and allocating 50 pages across the reply briefs.

Recently, I was assisting with some ninth-grade English homework. The assignment was to write an essay on perhaps one of the funniest short plays I know, Oscar Wilde’s The Importance of Being Earnest. In about 50 pages, Wilde’s wit lifts a mirror to the pretentiousness and superficiality of several societal mores. The writing is crisp and remains on point. As we practice our honorable profession, assisting our clients to achieve their goals and justice, may the words we select prove to be productive, and not useless or worse.