966 F. 2d 578 - Tk-7 Corporation v. Estate of Barbouti Tk-7 Corporation

Defendants-appellees -- cross-appellants filed a motion for leave to file a sixty page brief. After their motion was denied, they filed a brief that is fifty-one pages long and contains one hundred and two footnotes. Using a favorite undergraduate gambit, defendants have visibly shrunk the type face and spacing of the footnotes and re-started the numbering several times (1-7, 1-37, 1-58). TK-7 Corporation complains about defendants' evasion of our length restrictions and claims that the brief, if typed properly, would be nearly twice the fifty-page limit.

The Tenth Circuit local rules provide that "[i]n cross appeals, appellee's answer brief and cross-appellant's brief shall be filed as one brief, not to exceed 50 pages." 10th Cir.R. 28.3. "Typewritten text must be no smaller than pica with no less than 10-pitch spacing." Id. 32.1(a) (emphasis added). It appears that defendants have simply taken nine pages of material out of the double-spaced text and moved them into an excessive number of legitimately single-spaced, but illegitimately shrunken footnotes. See Production Employees' Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1407 (7th Cir.1992); Fleming v. County of Kane, 855 F.2d 496, 498 (7th Cir.1988); Anderson v. Alpha Portland Indus, Inc., 836 F.2d 1512, 1521 (8th Cir.1988).

While we appreciate the savings in time and labor made possible by such technological innovations as word processing, we regret the temptation they pose to the wordy to compress, rather than edit. Our rule requiring pica type and 10-pitch spacing applies to footnotes as well as text. Defendants will have to find some way of abridging their arguments, other than toying with their computers, to meet these requirements.

Defendants' brief is stricken. Within ten days of the date of this order, they shall file a brief which complies with our rules, preferably in spirit as well as in letter, see Anderson, 836 F.2d at 1521 (use of 189 footnotes "violates the spirit, if not the letter," of the rules).