Judge Posner Bench Slaps Lengthy Brief

March 9th, 2011

In the 7th Circuit, a 14,000-word limit means 14,000 words. Don’t go over, or else you’ll get a slap like this from Judge Posner:

The response to the order to show cause, signed bylawyer Caudill, concedes that the brief exceeds the  word limit (it exceeds it by more than 4,000 words), and states by way of explanation that he had “inadvertently considered only the words included in the argumentsection of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor incitations made within parentheticals).” It is difficult to see how these errors could be “inadvertent.” Rule32(a)(7)(B)(iii) states: “Headings, footnotes, and quotationscount toward the word and line limitations. The corporate disclosure statement, table of contents, table ofcitations, statement with respect to oral argument, anyaddendum containing statutes, rules or regulations,and any certificates of counsel do not count toward the limitation.” There is no ambiguity, hence no room formisinterpreting the rule as confining the required wordcount to the argument portion of the brief (which would, for example, allow for an endless statement of facts), oras omitting citations in parentheses.

Posner even contends the brief did not need that many words!

We add that the appellants’ brief is rambling,and would be more effective if compressed to 14,000 words. But Caudill doesn’t seek an opportunity tosubmit a compliant brief. He insists that his 18,000+word brief be allowed.

And whatever you do, do not make misrepresentations to the Court about the length of your brief.

Had appellants filed an 18,000-word brief with atruthful certificate, the brief would have been rejected;there would have been no occasion for sanctions, justas there is no occasion for sanctions when a brief isrejected for omitting a statement of the standard ofreview or the date on which the judgment was entered,which is essential to determining the timeliness of theappeal. We reject many briefs for these and similarreasons. The problem here, by contrast, is a misrepresentationthat was initially successful in averting rejectionof the brief. The misrepresentation would havegone unnoticed had the appellee not called it to ourattention.

And the attorney paid the price for writing a long brief. Posner almost dismissed the case based on the “flagrancy of the violation.”

The flagrancy of the violation in this case might welljustify the dismissal of the appeal: let this be a warning.But in addition it is plain from the briefs that theappeal has no merit. To allow time for the appellants tofile a compliant brief and the appellees to file a revisedbrief in response, and to reschedule oral argument,would merely delay the inevitable.

The motion to file an oversized brief is denied and thejudgment of the district court summarily

H/T How Appealing