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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