Watch that word count

An interesting order from the Western District of Washington, in Larsen v. PPT, LLC, illustrates an uncommon pitfall in submitting court briefs. The defendant had submitted two briefs with certifications to the Court as to the number of words. But it turns out that the briefs contained more words than permitted, and the certifications were not true. The plaintiff moved for sanctions based on "false certifications to the Court."

The defendant conceded the error but blamed it on a setting in Microsoft Word. When counting words in a brief or other document, the user can choose whether to count words that appear in footnotes, end notes, and text boxes, and it seems that someone had de-selected this option.

Oops!

The court remarked that this explanation was "somewhat hard to believe given the experience and sophistication of counsel." I don't agree with that comment or find reason to disbelieve the innocent explanation. Experienced and sophisticated counsel can still make mistakes, just as in any other profession. It's more likely that this lawyer made a dumb mistake than chose to commit two acts of perjury for the purpose of getting a few more words into a brief. Note that even federal district judges make mistakes sometimes, which is why they have courts of appeal.

It's true that word processing software is one of the lawyers' tools of the trade, and the defendant's counsel here should not have made this error. In this case, the court applied the penalty of refusing to consider material in the footnotes. (I think judges often skip over footnotes anyway, but that's a topic for another day.) Counsel apparently escaped more serious sanctions for the allegedly false certifications.

The next lawyer to make this mistake might not get off so easily. So, watch your word count!