So here are two rule violations I see often:
1. lack of parallel cites.
Lately I’ve seen more and more briefs in the SJC that don’t include the parallel cite (e.g. 2005 ME XX, without the parallel XX A.2d XXX). Upon occasion, I have also received memos from new associates and paralegals without the parallel cite. When I ask why, they say that the latest blue book only requires the official cite.
Well, here in Maine, at least for the Maine courts, we have something called the Uniform Maine Citations, which requires both cites. When I asked Nancy Wanderer, working on the next edition, what that edition would say, she said the parallel cite rule will stay.
Obviously, it would save space and a little time not to use both cites. But the point is to make a brief as easy as possible for the reader — the Court. And sometimes, I think, it may be easier for them to grab the Atlantic reporter off the shelf than to find a computer or a slip copy of the official version.
So it’s parallel cites for me until someone tells me otherwise. (With pin cites and parentheticals in the brief, so again the Court knows why I’m citing it and exactly where to look.)
Briefs are also being filed in times new roman font in the SJC. Now it took me a while to figure this one out, but the rule (M.R.App.R. 9(f)) says "All printed matter must appear in at least 12 point font not smaller than 12 point Bookman ….") The Advisory Committee Note says "Appropriate type styles to use include Bookman …. Type styles such as … Times should be avoided."
Well, avoided is too gentle terminology. Times was produced for newspaper print, to cram more words onto each line. And it does. This is not a big deal if the other side’s brief doesn’t hit the page limit. But a 50 page Times New Roman brief is about 16.5% longer, or around 8 pages, than a Bookman or other listed font brief. To me, that’s not fair and violates the rule – the Times New Roman font is, in the Rule’s words, "smaller."
So what to do when this happens and the other side files a too-long brief by using squishy font?
The more common judicial response is to refuse the brief, impose a monetary sanction or stop reading at the point the brief should end. See, e.g., Columbus-America Discovery Group v. Am. Mut. Ins. Co., 56 F.3d 556 n. 23 (4th Cir. 1995) (striking a reply brief and refusing to consider text after maximum pagination allowed); Westinghouse Electric Corp. v. NLRB, 809 F.2d 419 (7th Cir. 1986) ($1000 sanction where, to evade pagination limit, party used smaller type and crammed text into footnotes).
My personal favorite, however — and proving that the oldies are the goodies — is Mylward v. Weldon (1596). There, an English Chancery Court imprisoned a petitioner for filing a 120-page replication, instructing the warden to "cut a hole in the midst of the same engrossed Replication … and put the said [pleader’s head] through the same whole, and so let the same Replication hang about his shoulder with the written side outward."