In court papers, font size matters. The smaller the font, the more information an attorney can jam into a document.
Trial judges and appellate courts sometime require attorneys to file papers using the same size, and type, of font. In South Carolina’s closely watched dispute with the Justice Department over voter identification, the judges earlier this year told the attorneys to use 13-point Times New Roman font. Double-spaced. With one-inch margins.
There wasn’t any dispute about the font and size — until September 8. At that point, after DOJ and South Carolina traded briefs about the case, the federal government noticed something peculiar. South Carolina’s “proposed findings of fact” papers, submitted by a team from Bancroft, had a smaller-sized font.
On Saturday evening, a Justice Department lawyer, Bradley Heard, sent an e-mail to South Carolina’s legal team saying that “we note that the document appears to be in 12 point font, not 13 point font,” as required by court orders in the case.
“I’m pretty sure this specific topic was a point of discussion among all counsel prior to filing our respective briefs, and each party appeared to recognize the continuing 13-point font requirement,” Heard wrote in the email. “Thus, we were surprised to receive the State’s 12-point font brief. The apparent failure to comply with the Court’s order had the effect of substantially increasing the State’s page limitations and, under the circumstances, prejudices the United States.”
Heard asked South Carolina’s lawyers to withdraw their court papers and re-file a document with the correct size font. A lawyer for South Carolina, H. Christopher Bartolomucci, responded to Heard at ten minutes before 9 p.m. on September 8 with this: “We do not intend to revise our filing unless of course the Court indicates we should.” Bartolomucci said a revised scheduling order, issued in July, “does not require 13-point font.”
At 10:51 p.m. that day, Heard filed an emergency motion in Washington’s federal trial court urging the panel judges to strike South Carolina’s court brief. Heard said in the DOJ papers that South Carolina’s papers would have exceeded the 50-page limit “by at least 8 or 10 pages” had it been formatted correctly.
“The United States would not ordinarily burden the court with a type-size dispute and regrets that it must do so here,” Heard told the court. “However, the parties are operating within significant space constraints for post-trial briefing.”
Bartolomucci, a Bancroft partner, didn’t sit back and let DOJ make accusations. Rather, he noted in a court filing the morning of September 9 that DOJ lawyers also used a 12-point font in other court papers in the case.
“South Carolina did not use 12-point font to seek a tactical advantage over the United States, and it is unfortunate that the United States’ filing is in a larger font,” Bartolomucci said. South Carolina’s filing complies with a July 3 court order, he said. Bartolomucci asked the court to keep in place the state’s court papers.
Bartolomucci also said South Carolina’s team and DOJ lawyers never talked together about what font size to use. “South Carolina certainly would have abided by any agreement or common understanding regarding the type size to be used,” he said in a footnote.
On Sunday afternoon, two judges who are presiding over the case — Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit and U.S. District Judge John Bates — said DOJ can re-file its court papers in 12-point font, giving the government a bit more space to explain its position.
The last part of the court’s order? The judges told the lawyers that “all other filings from all parties shall henceforth be in 13-point font.”
That settles one issue. The court, however, hasn’t yet ruled on the propriety of South Carolina’s voter identification law, which DOJ lawyers contend will harm minorities and the poor. South Carolina’s lawyers say the measure is needed to combat voter fraud.
Contact Mike Scarcella at mscarcella @alm.com.