How-to: Fix first page pleading alignment problem in MS Word

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If you spend any significant amount of time handling pleadings with line numbering on the side, you've probably received a pleading that has a misalignment problem on the first page like so:

The second page aligns just fine, but you can't figure out why you can't get the first page firm name block to align correctly.  This is the goal:

This problem stems from a deeply buried setting in Microsoft Word.  In Word 2007, hit the Office button in the top left corner of the program.  Click on the Word Options button.  Then select the "Advanced" settings panel.  Scroll all the way to the bottom.  In the "Compatibility options" section, expand the "Layout Options" section.  Find the "Don't center 'exact line height' lines" checkbox and put a check in it.  Problem solved.

Why does Word do this?  Pleadings typically used "Exact height" line spacing to fit the 28 lines in on one page.  The spacing is set at a point size increment of somewhere around 12 points for single spacing and 24 for double spaced lines.  The default behavior in Word is to put a line of text in the vertical center of the space allocated for the line.  This causes 24 point spacing lines to have a larger cushion of space at the top than 12 point ("single" spaced) lines.  The attorney name block uses single spaced lines.  The pleading numbering on the side of the page uses 24 point spacing.  This misaligns the pleading numbers from the attorney name.

On the second page, which most frequently begins with a "double" spaced line of text (24 points, for example), the cushioning is the same for the text and the pleading line numbers.  By telling Word not to center "exact line height" lines, all lines of text, whether 12 pt (single) or 24 pt (double) begin at the top of the vertical line spacing allocated to that line of text.  In that case, the pleading numbers and the attorney name at the top of the caption both begin at the top of their respective lines.  One line just has more open space below the text.

In older version of Word, you can find this setting in the Tools > Options menu.

What amazes me the most is that I see this configuration error from big firms and small alike.  I can understand this getting by a small shop, but the big firms all pay the big bucks for dedicated word processing departments.

I will consider Word training sessions if offered a sufficiently outrageous sum of cash.  Say, I bet you have wondered if there is an easy way to generate Tables of Contents and Tables of Authorities.  There is.  I bet you have wondered if there is a way to easily align pleading text up with line numbers after a single-spaced block quote screws it all up.  Yup, there sure is.  Someday I will offer a seminar that shows you how to do all of these things and more. 

AT&T's preemption argument based on Stolt-Nielsen is dead before it hits the floor

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United States District Court Judge Claudia Wilken (Northern District of California) has already been gifted with the privilege of considering whether Stolt-Nielsen S. A. et al. v. AnimalFeeds International Corp. (discussed on this blog here) preempts any state law that would preclude enforcement of an arbitration agreement.  McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. May 10, 2010).  Judge Wilken took care of that argument in one sharp paragraph:

Defendants assert that Stolt-Nielsen creates a substantial question as to whether the “FAA would preempt any holding that California law precludes enforcement of McArdle's agreement to arbitrate his disputes with” them on an individual basis. Mot. for Leave at 4. The Court disagrees. The issue presented in Stolt-Nielsen was “whether imposing class arbitration on parties whose arbitration clauses are ‘silent’ on that issue is consistent with the Federal Arbitration Act (FAA).” 2010 WL 1655826, at *4. The Supreme Court did not address FAA preemption. Nor did it overrule its precedent upon which the Ninth Circuit relied in Shroyer v. New Cingular Wireless Services, Inc., which held that California law on unconscionability could render an arbitration clause unenforceable, 498 F.3d 976, 986-87 (9th Cir.2007).  Stolt-Nielsen is distinguishable both on the facts and the law and, therefore, does not require this Court to reconsider its order on Defendants' motion to stay this action pending their appeal.

Slip op., at 1.  One interesting bit of information is also included in the Order.  The Ninth Circuit recently held that Shroyer continues to control the issue of unconscionability analysis under California law.  Laster v. AT & T Mobility LLC, 584 F.3d 849 (9th Cir.2009). AT&T filed a petition for certiorari in Laster, upon which they expect the Supreme Court to rule by May 24.  If the Supreme Court takes up Laster, they will be forced to explicitly address carve-outs alluded to by the dissent in Stolt-Nielsen but not addressed by the majority opinion.

Arguelles-Romero v. Superior Court explains rules in Gentry and Discover Bank

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If you were an arbitration agreement, this is your moment in the spotlight.  In Arguelles-Romero v. Superior Court (May 13, 2010), the Court of Appeal (Second Appellate District, Division Three) granted a petition for a writ of mandate after the trial court ordered the plaintiff to submit to individual arbitration.  The trial court also ruled that a class action waiver provision in the automobile financing contract was not unconscionable.  That finding by the trial court prompted the Court of Appeal to spend a good deal of time discussing the two different tests presented in the California Supreme Court cases of Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005) (Discover Bank) and Gentry v. Superior Court, 42 Cal. 4th 443 (2007) (Gentry).  The Court of Appeal held:

While we hold the trial court did not err in finding the class action waiver was not unconscionable, we also conclude that it should have also performed a discretionary analysis on whether a class action is a significantly more effective practical means of vindicating the unwaivable statutory rights at issue. We therefore grant the petition and remand with directions.

Slip op., at 2.  To provide some context, the Court stated the basic standard of review as follows:

“California law, like federal law, favors enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97 (Armendariz).) Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the voiding of any contract. (Id. at p. 98 & fn. 4.) Unconscionability is a recognized contract defense which can defeat an arbitration agreement. (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1099.)

Slip op., at 12.

Cutting right to it, here is the first money quote:

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California Supreme Court activity for the week of May 10, 2010

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The California Supreme Court held its (usually) weekly conference today.  Notable results include:

  • A Petition for Review and depublication was denied in Jaimez v. DAIOHS USA, Inc., et al., 181 Cal. App. 4th 1286 (February 8, 2010), (detailed analysis of certification standard as applied to various wage & hour claims) discussed on this blog here.  This opinion has already influenced trial courts considering certification motions in the wage & hour context.

I don't see anything else in this week's conference summary that would be of interest here.  If I missed anything after my very quick scan, I will update this post.

Corporate officer can use attorney status to obtain relief from default class action judgment

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My condolences to my colleague, Greg Karasik.  After almost two years of attempting to elicit some form of meaningful response from the defendant in Gutierrez v. G & M Oil Company, Mr. Karasik obtained something you don't see every day, a default judgment in a class action.  Sadly, that judgment of about $4 million was set aside by the trial court after it concluded that Michael Gray, Vice President and General Counsel for the defendant, could use his own neglect to set aside the default that he, in his capacity as corporate officer, knew about all along.  The Court of Appeal (Fourth Appellate District, Division Three) in Gutierrez v. G & M Oil Company (May 7, 2010) affirmed the decision.

The Court observed that the issue was one of first impression:

Today we face the related question of whether in-house attorneys come within the mandatory relief from default or dismissal provision of section 473 of the Code of Civil Procedure. The question is, as far as we are aware, one of first impression in California. However, based on what the Supreme Court said in General Dynamics and in PLCM about the role of in-house attorneys, there can be no doubt about the answer: yes.

There is a wrinkle in this case, however, that requires a little more explication. Here, the in-house attorney who negligently allowed a $4 million default judgment to be taken against his company and his employer, a gas station chain, had the title of “Vice President and General Counsel.” Thus, he was a corporate officer as well as being an in-house attorney. Should that make a difference?

Slip op., at 2.  Concluding that the issue was one of statutory construction, the Court found that "there is nothing in section 473 which suggests that in-house attorneys who are also officers of a corporation are somehow exempt from the operation of the mandatory provisions of the statute."  Slip op., at 3.

The opinion examines at some length the operation of section 473 as it pertains to in-house counsel.  I can credit the Court for a well-reasoned and well-written analysis (aside: though I regularly disagree with Division Three, there are some very good writers in that Division of the Fourth Appellate District).  Still, it is a disappointing outcome where an attorney that is also an officer of a company can avoid imputation of knowledge to the company by claiming that he was wearing his attorney hat.

Minor blog formatting adjustments and new tools...

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SquareSpace rolled out some new features, one of which you will find in the right sidebar.  SquareSpace now stores Twitter posts on its own servers to speed load times.  The widget is also interactive, allowing you to navigate back through older Twitter posts.

While I was at it, I slightly expanded the width of the content area and then increased the font size for posts to improve readability.  If these sorts of things matter to you, feel free to leave a comment.

District Court certifies a class of Kelly Services employees alleging unpaid wages

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United States District Court Judge Claudia Wilken (Northern District of California) granted plaintiff's motion to certify a class of California-based staffing agency employees that spent time and incurred expenses for interviews with the staffing agency's clients.  Sullivan v. Kelly Services, Inc., 2010 WL 1729174 (N.D. Cal. Apr. 27, 2010).  After prior cross-motions for summary judgment, the Court held that Plaintiff Catherine Sullivan should be compensated for the time she spent in her interviews, but not for her time preparing for and traveling to the interviews or her commuting expenses.  While the Court gives attention to the defendant's arguments, it looks as though this certification was not a close call after the summary judgment rulings.

Stolt-Nielsen S. A. et al. v. AnimalFeeds International Corp.: Less than meets the eye

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The interplay between class actions and arbitration provisions was a controversial topic for many years in California until Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005) and Gentry v. Superior Court, 42 Cal. 4th 443 (2007) eliminated a substantial amount of uncertainty about class arbitration waivers in the areas of consumer contracts and employment arbitration agreements. These decisions, and other applying their principles, declared that, in California, many class action waivers in the consumer and employment law settings are unconscionable under California law. Gentry, at 779. “[A]lthough ‘[c]lass action and arbitration waivers are not, in the abstract, exculpatory clauses’ (Discover Bank, supra, 36 Cal.4th at p. 161, 30 Cal.Rptr.3d 76, 113 P.3d 1100), such a waiver can be exculpatory in practical terms because it can make it very difficult for those injured by unlawful conduct to pursue a legal remedy.” Gentry, at 783.

On April 27, 2010, the United States Supreme Court issued its Opinion in Stolt-Nielsen S. A. et al. v. AnimalFeeds International Corp. Initial commentary quickly concluded that Stolt-Nielsen will eliminate many consumer and employment law class actions. Whether that is accurate at the macro level won’t be known for years. However, the question raised by Stolt-Nielsen, for the perspective of California litigation, is whether Stolt-Nielsen altered controlling California law negatively, or, perhaps unexpectedly, added strength to California’s approach to arbitration provisions.

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District Court certifies a class of Penske Logistics delivery drivers and installers

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United States District Court Judge Janis Sammartino (Southern District of California) granted plaintiff's motion to certify a class of California-based logistics employees that drove delivery trucks or rode along as installation helpers.  Dilts v. Penske Logsiticcs, LLC (S.D. Cal. Apr. 26, 2010) 2010 WL 1709807.  The analysis was long but not unusual in the wage & hour setting.  The Court offered these comments about its decision to certify the meal period subclass:

The first issue to deal with is the employer's obligation with respect to meal periods under California law. The legal uncertainty about this issue has been a recent source of heartburn for courts. Although it is presently before the California Supreme Court in Brinker Restaurant v. Superior Court, until that decision has issued this Court must proceed as best it can.

As such, the Court finds that California meal break law requires an employer to affirmatively act to make a meal period available where the employee are relieved of all duty. See Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949, 35 Cal.Rptr.3d 243, 252-53 (Cal.Ct.App.2006) (“[T]he defendant's obligation to provide the plaintiffs with an adequate meal period is not satisfied by assuming that the meal periods were taken, because employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty.’ ”); Brown v. Fed. Express Corp., 249 F.R.D. 580, 585 (C.D.Cal.2008) (“It is an employer's obligation to ensure that its employees are free from its control for thirty minutes.”). An illusory meal period, where the employer effectively prevents an employee from having an uninterrupted meal period, does not satisfy this requirement. Cicairos, 35 Cal.Rptr.3d at 252-53; Brown, 249 F.R.D. at 585. However, the employee is not required to use the provided meal period.

Slip op., at 11.