We have tried in this column to cover word processing issues useful for many types of organizations, drawing on experience from the practice of law. The issue of accurate word count makes that challenging. for those who aren’t lawyers (or more specifically, litigators). Please bear with us.
In Anthony Desilva, et al. v Joseph G. Dileonardi, US Marshal, Etc. (http://laws.findlaw.com/7th/991754A.html) the court excused a party from sanctions for exceeding the limit of the number of words permitted in a brief by Federal Rule of Appellate Procedure 32(a)(7). The court wrote in an opinion dated July 21, 1999:
Appellants’ brief was prepared with Microsoft Word 97, and an unfortunate interaction occurred between that software and the terms of Rule 32. All recent versions of Microsoft Word (Word 97 for Windows, Word 98 for Macintosh, and Word 2000 for Windows), and some older versions that we have tested, count words and characters in both text and footnotes when the cursor is placed anywhere in the document and no text is selected. In recent versions on both Windows and Macintosh platforms, choosing the Word Count function brings up a window listing the number of characters and words in the document. A checkbox at the bottom of the window reading “Include footnotes and endnotes,” when selected, yields a word count for all text and notes. But if the user selects any text in the document this checkbox is dimmed, and the program counts only the characters and words in the selected text. Microsoft Word does not offer a way to count words in those footnotes attached to the selected text.
This complicates implementation of Fed. R. App. 32(a)(7), which limits the allowable length of a brief to 14,000 words, and of a reply brief to 7,000 words. Under Rule 32(a)(7) (B)(iii), footnotes count toward this limit, but the “corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation.” To determine the number of words that are included in the limit, counsel selects the “countable” body portions of the brief—which causes Microsoft Word to ignore countable footnotes. Counsel who do not notice that the count-footnotes box has been dimmed out may unintentionally file a false certificate and a brief that exceeds the word limits. That’s what happened to appellants’ lawyers. Older versions of Word have separate columns for text and footnote counts (plus a summation column), giving a visible cue that footnotes were not being counted when text had been selected, but current versions give only a consolidated count. When the count-footnotes checkbox is dimmed, even counsel who are aware that the brief contains footnotes may suppose that the software included these automatically. … Long-run solutions to this problem must come either from Microsoft Corporation—which ought to make it possible to obtain a count of words in footnotes attached to selected text—or from the national rulemaking process. We will send copies of this opinion to those responsible for such design decisions. In the meantime, we will flag this issue in the court’s Practitioner’s Guide and in materials distributed to counsel when an appeal is docketed. Law firms should alert their staffs to the issue pending a resolution at the software level. Our clerk’s office will spot-check briefs that have been prepared on Microsoft Word, are close to the word limit, and contain footnotes. Noncomplying briefs will be returned, and if the problem persists after there has been ample time for news to reach the bar we will consider what else needs to be done. (Counsel who use Word are not entitled to a litigating advantage over those who use WordPerfect.) For now, however, sanctions are inappropriate, and the order to show cause is discharged. “
Microsoft has now released a macro solution. It can be found at http://officeupdate.microsoft.com/2000/downloadDetails/swcmacro.htm for Word 97 and Word 2000, 137kb download.
The solution is packaged in a file called swmacro.dot. It adds a “Selection Word Count” toolbar. That contains a launch button for a macro that will report the word count for selected text, with options for including or excluding the word count of footnotes and endnotes referenced by that text. The options are enabled by default.
Installation instructions can be found on the web page and further details are included in the text of the template itself. The download contains a self-executing zipped file, the execution of which launches Word and opens a document derived from swmacro.dot. It includes macro buttons that will either copy swmacro.dot to the Word startup directory, or include its code in normal.dot. The installation instructions include descriptions of necessary temporary changes to macro security settings during the installation process.
Law practices and others who wish to enable this solution may find it simpler to have central staff extract swmacro.dot from swmacro.exe. This can be done a zip file tool. For many users, copying swmacro.dot to their Word startup directory so that it is a global template will work fine. Organizations that have already implemented a procedure for updating files in the startup directory and should use it here. This will avoid the need for individual users making changes in security settings. This also avoids reliance on normal.dot.
The word count for this column (minus the title) is 900 (with 538 words quoted from the 7th Circuit). Only lawyers could care so much?
This 1999 article originally appeared in Office Watch. Subscribe to Office Watch free at http://www.office-watch.com/.