Thursday, March 31, 2011

Writing a Brief? Better Follow the Rules!

A recent online ABA Journal Weekly Newsletter article reveals some perils involved in writing a brief. The Federal Rules of Appellate Procedure (FRAP) contain some very specific rules about the form of briefs. For instance, Rule 32(a)(4) provides:
(4) Paper Size, Line Spacing, and Margins. The brief must be on 81⁄2 by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.
Rule 32(a)(7) covers the permissible length of a principal brief, limiting its length to 30 pages or 14,000 words (or 1,300 lines of text if using a "monospaced face"). If the attorney decides to use the latter limits, he or she is required to certify that the brief meets the word or line limits. As discussed in the above article, it is this rule about the length of the brief that is at issue in Abner v. Scott Mem'l Hosp., No. 10-2713 (7th Cir. Mar. 9, 2011).

The appellants' lawyer filed the required certification, stating that his brief contained 13,877 words. The appellee's brief, however, pointed out in a footnote that the appellants' brief was really 18,000+ words.

When the appellants' lawyer did not contest that his brief was "oversized," the court issued a show cause order why the brief should not be stricken and/or sanctions applied for filing such a brief without permission. The lawyer responded, admitting the excess and including a (belated) Motion for Leave to Exceed Word Count.

The Seventh Circuit opinion, written by Judge Posner, fairly bristles with displeasure at the lawyer's actions. The decision points out that the court has rejected "many briefs" for failing to comply with the FRAP (for instance, for failing to include the standard of review as required by FRAP28(a)(9)(B)). But in this instance, the attorney also mislead the court with an incorrect certification. Moreover, the brief was "rambling and would have been more effective if compressed...."

The court finds that the explanation provided for the incorrect word count is not convincing and strikes the brief. Judge Posner points out that the court could have gone further, even dismissing the appeal. Several decisions are cited where appeals were dismissed as sanctions for violations of FRAP30, which prescribes the form and content of appendices to briefs. In this particular instance, however, the court does not need to invoke dismissal as a sanction:

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

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


Just remember, when writing briefs, content AND form matter. You have been warned!

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