Monday, September 23, 2013
Ind. Courts - "Appellate Clerk Cracking Down on Single-Spacing in Briefs and Motions"
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
The Appellate Rules detail a number of requirements for appellate briefs, including acceptable fonts, page numbering, colors of covers, and so on. Non-conforming briefs are marked “received” instead of filed, and counsel is given an opportunity to remedy the error along with a helpful check-box form.
In the past week or so, though, experienced appellate lawyers who have long filed appellate briefs that single-spaced their Statement of Issues or single-spaced a bullet-pointed list of items in a brief or motion (such as other work that necessitated an extension of time) were surprised to have their briefs rejected. Even single-spacing of point headings led to the initial rejection of a brief, although that brief was accepted later in the day.
Appellate Rule 43(E) provides: “Spacing. All printing in the text shall be double-spaced except lengthy quotes and footnotes shall be single-spaced. Single-spaced lines shall be separated by at least 4-point spaces.” Rule 34(G)(1) requires motions to conform to the requirements of Rule 43 (B)-(G).
I have never single-spaced my Statement of the Issues but have occasionally included bullet-pointed items that were single-spaced.* I cannot quarrel with the Clerk Office’s view that a fair reading of Rule 43(E) requires double-spacing of both. But I am at a loss to understand why a practice that seems to have been acceptable since the adoption of the current Appellate Rules more than a decade ago suddenly became grounds to reject a brief in September 2013—with no advance notice to the appellate bar. Because no notice of the change in practice was provided, lawyers have been required to have briefs reprinted and motions recopied. In appointed counsel cases, that means taxpayer money for the lawyer’s time (if paid hourly) and the expense of brief-binding (which can easily be a $100 or more for one case).
My point in writing this post, though, is primarily to give notice to lawyers who have not filed a brief in the past week or two of this change in practice so they can avoid the need and expense of re-doing a brief or motion. My understanding is that briefs may single-space point headings. And, of course, Rule 43 expressly requires the single-spacing of long quotations (blocked and indented) and footnotes. Otherwise, and if doubt, DOUBLE-SPACE.
But what about charts or tables? I had planned to include this single-spaced chart in an Appellate Clinic brief that was due Friday. After running it by the Clerk, however, we instead filed this silly-looking double-spaced chart. I think it’s fair to read Rule 43(E) to require double-spacing, but I have never seen a single-spaced chart in a brief. Consider, for example:
- Prof. Volokh’s amicus brief in Brewington v. State
- This brief dealing with a Criminal Rule 4 (speedy trial) issue
- This zoning case
- This insurance liability case
I hope it will also be one of the last. I hope the Rules Committee and ultimately the Indiana Supreme Court will amend the rule to allow charts or tables to be single-spaced. I suspect judges would rather see the information on one-page rather than being required to flip between two pages.
**Another approach would have been to attempt to file the brief with the single-spaced TABLE. Would the counter clerk look through each of the fourteen pages to ensure compliance with the double-spacing mandate of Rule 43(E)? I did not want to take a chance. Others may take a different approach and can debate whether it is a good use of staff time to look through every page of a brief (some of which are thirty or forty pages) to ensure compliance with the rules.
[ILB note at 1:01 PM] Minor changes made to reflect that both briefs and motions are included in the requirements.
Posted by Marcia Oddi on September 23, 2013 09:10 AM
Posted to Schumm - Commentary