Motions to File an Oversized Brief: Avoid Them if You Can

Over the last several years, panel members have brought a number of motions in the Sixth District to file over sized opening briefs in excess of the 25,500 words allowed by Rule 8.360(b)(1), California Rules of Court. The vast majority of these motions have been denied. The panel members have then been forced to sweat the extra words from the brief, which required further work and further delay in getting the brief filed and getting paid for the work done in the case to that point.

Apparently, there are different standards for establishing the good cause required by Rule 8.360(b)(1) for the motion. From speaking to panel members, I have heard that there are a variety of approaches to such motions in the various districts and divisions of the Court of Appeal, ranging from a strong tendency to grant to a strong tendency to deny. The Sixth District itself has moved from a fairly lenient approach under former Presiding Justice Cottle to a much stricter one under Presiding Justice Rushing.

The best way to avoid having a motion to file an over long brief denied is to avoid filing one in the first place. That means treating the 25,500 word limit seriously and keeping your briefs as concise as reasonably possible. The limit of 25,500 words for an opening brief is a very generous allowance, and one that should be honored in all but the most extreme situations. In comparison, the federal rules of appellate procedure allow only 14,000 words. We are allowed almost twice that.

The value of brevity in brief writing is almost universally emphasized in guides to appellate practice. The point of a good brief is to take a tangle of facts and applicable law and fashion concise and coherent arguments. A good argument contains all the necessary evidentiary and procedural facts and the applicable law and brings the reader to the desired conclusion: that the client is legally entitled to relief from the appellate court. Inclusion of any facts or law that do not contribute to the argument weakens the argument. A sophisticated reader assumes that the reason you are talking about facts or points of law of limited utility to your argument is because you are unable to fashion a stronger argument.

There is an unfortunate tendency among some panel members to “data dump” in a brief. That is, they include in the brief a summary of everything they have learned from their review of the record or research of the law, whether it is helpful to the reader’s understanding of the arguments being made or not. This happens particularly with panel members who write the statement of case and facts while they are reviewing the record, before they identify and research potential issues in the case. This approach often leads to the inclusion of a lot of factual material that is irrelevant to the issues raised in the brief.

Another cause for excessively long briefs is the inclusion of very weak and marginally frivolous arguments. Some long briefs have 10-15 issues. Those toward the end of the brief sometimes consist of oft rejected attacks on standard jury instructions, some with very little explanation of the prejudice from such allegedly erroneous instructions.

A good writer needs to understand the reader, the consumer of the written product. Your brief is being read by a number of people: (1) the project staff attorney responsible for the case; (2) the senior project staff person who must determine the compensation award for the brief; (3) the Deputy Attorney General and (4) several Court of Appeal justices and/or judicial attorneys.

All of these readers have something in common: they read a great number of briefs, literally hundreds of them annually. Your work is always being compared to that of others for its conciseness, quality of legal analysis and over all persuasiveness. To these high volume readers, an unnecessarily long brief is an immediate huge negative. The minds of such readers are constantly asking, “why is this important?” “How does this fit in or support the argument?” “Why is this person going on ad nauseam on a relatively unimportant or uncontested point, and not addressing the necessary and important points that will determine whether or not the appellant is entitled to relief?”

Tight editing of a brief is a must. The question for every sentence should be: do I need to say this? Don’t get me wrong, you do need to talk about such necessary components of an appellate argument such as reviewability, the standard of review, the legal basis of your claim, why the ruling under attack violated the law, why it prejudiced your client under the applicable test of prejudice, and the appropriate appellate remedy. But editorializing, repetition of points already made, and discussion of tangential authority are not effective
methods of argumentation and should be eliminated.

From time to time, I have heard panel members say that they felt the compensation guidelines and practices encouraged lengthy briefs. They expressed the view that the more you write, the more likely the issue is to be viewed as complex and thus deserving of higher compensation. I have heard the view expressed that there is an informal guideline of an hour per page applied by the projects to claims for briefs.

At SDAP, we do not base our assessment of the complexity of an issue on the length of the briefing, nor is there any informal guideline of an hour per page. In assessing the complexity of an issue, and reasonable compensation for it, we look primarily at such factors as: (a) whether all necessary elements of the argument were addressed; (b) whether the procedural or factual background is complicated; (c) whether there is substantial disagreement in the caselaw on issues that must be addressed; and (d) the novelty of the claim. The key is the amount of effective argumentation contained in the argument, not mere bulk.

In short, brevity will improve your effectiveness as an appellate advocate, improve the project evaluation of your work and will not lead to reduced compensation.

There are a few situations in which an oversized brief cannot be avoided. Generally, these are appeals involving an extremely lengthy trial record, complex factual situations involving a mosaic of circumstantial evidence or expert testimony, and a number of substantial legal issues.There are some things that you can say in such a situation to increase the chance your motion to file the oversize brief will be granted. The natural tendency in this situation is to stress the reasons why the brief had to be long: record length, number and complexity of issues and the like. These reasons do need to be there. But it is also important to demonstrate to the court what you have done to make the brief as short as possible, despite going over the word limit. If you have done multiple edits of the statement of facts, reducing it by hundreds of words, say so. If you have eliminated some issues in the interest of brevity, say so. You want your motion to say that you have already done everything reasonably possible to keep the brief within the limit. This approach shows that you are aware of the value of brevity and your need to demonstrate good cause for exceeding the generous 25,500 word limit.

(Jan. 8, 2008)

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