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Adventures in the Law: Reading Between the Lines

Norm Tabler


  • Judge in CafeX Communications case strikes document, orders replacement, and fines law firm for 24-point spacing.
  • Strict Constructionist vs. Originalist Perspective: Debate on interpreting "double-spaced" with a focus on rule adherence and historical context.
  • VirnetX v. Microsoft (Apr. 29, 2010): Microsoft lawyers chastised for violating local rules on double-spacing.
  • Lopez v. The Gap (May 3, 2012): The Gap's 24-point spacing leads to accusations and permits the opposition additional pages.
Adventures in the Law: Reading Between the Lines

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In drafting court documents, lawyers typically craft each line with care, anticipating close reading by the judge. But what about the space between the lines? The following case reveals how closely some judges study that space. It also sheds light on the sometimes-elusive distinction between the strict constructionist and originalist schools of textual interpretation.

In CafeX Communications v. Amazon Web Services, a lawyer filed a memorandum with 24-point spacing between the lines. Furious, the judge struck the document from the record, ordered it replaced with a properly spaced document, and fined the offending law firm an amount equal to the cost of redrafting and refiling. S.D.N.Y., order filed March 30, 2017.

In the judge’s view, the use of 24-point spacing was a wanton violation of the court’s Individual Rules of Practice, which provide that all memoranda “should be double-spaced and in 12-point font.”

A strict constructionist might puzzle over the order, thinking, “If the font is 12-point, doesn’t ‘double-spaced’ mean 24-point? After all, two times 12 is 24. Also, the Rule says ‘should,’ not ‘must.’ Isn’t it a suggestion rather than a requirement?”

An originalist, such as the late Justice Antonin Scalia, would respond, “Those are the wrong questions. The right question is, ‘What did the adopters of the Rule intend when they adopted it?’”

Scalia’s question produces an entirely different answer to the strict constructionist’s questions. We know from the historical context˗˗namely, the prevalence of Microsoft Word in court filings˗˗that when the court used the term “double-spaced” in the Rule, it wasn’t speaking English. It was speaking Microsoft Word. 

We also know that some years earlier Microsoft had decreed that “single-spaced” means 115%˗˗not 100%˗˗of font height. Why? Because the extra 15% of space makes a document visually more attractive and easier to read. Therefore, when the Rule says “double-spaced,” it means 230%˗˗not 200%˗˗of font height.

As for the term “should,” Scalia would note the context: The word appears in a rule adopted by the very court that’s interpreting it. The rule is no more a suggestion than is a sergeant’s statement to a private, “You should report for duty at 0700.” As Judge Learned Hand cautioned, “There is no surer way to misread a document than to read it literally.”

Federal case law provides two spot-on precedents that are as noteworthy for the identities of the parties as for the judges’ reactions. In VirnetX v. Microsoft, Microsoft’s lawyers were chastised for violating local rules “by not being fully double-spaced” in four filings and given a single day to redraft and refile with proper spacing. E.D.Tex., order filed Apr. 29, 2010.

As irony of irony, Microsoft’s own lawyers had interpreted “double-spaced” in English rather than in Microsoft Word!

In Lopez v. The Gap, lawyers for the Gap used 24-point spacing. The opposition cried foul, complaining that the Gap had reduced the gap between the lines in order to sneak in the equivalent of five extra pages. A sympathetic judge permitted the opposition to add five more pages to its original filing. S.D.N.Y., order filed May 3, 2012.

The lessons? First, judges can, and do, read between the lines. Second, the court that interprets its practice rules is the same court that adopted them. Third, like the rest of us, judges need their space.