Monday, September 17, 2012

Crayola in the Courts!

Around my office, the brief writing mantra is simple, "if I have more time, it could be shorter." Brevity and clarity are constant touchstones. The length of a brief is often inversely  proportional to it's persuasiveness. I've written about this, before, because it is a favorite subject.

But judges cannot rely on the efforts of counsel to craft short and concise briefs.  And so, most courts have page restrictions, and margin and font requirements. The idea behind these requirements is to prevent lawyers from "cheating" the process by squeezing additional text into a document (and thus make longer arguments) by manipulating spacing and font size.

In current federal litigation over South Carolina's voter ID law, the Department of Justice argued that South Carolina's use of 12 point font, where the court's rules require 13 point font, "prejudices the United States." One of my favorite blogs, Lowering the Bar, casts satirical light on this most trivial dispute among lawyers.

And it is not just the fact of the dispute that is humerous, it is the court's response, which is the equivalent of a permissive parent saying "don't to it again" to a child who stole his sibling's cookie--there was no consequence. A whole lot of briefing and lawyer expense, and no consequence. South Carolina stole the Department of Justice's cookie and got a 20% space advantage in it's brief by use of a smaller font. I think that deserves a hearty cheer of "Go Cocks!"

I recall a discussion in the 1990's with the Clerk for Maryland's Court of Appeals about briefing requirements.  She had been instructed by the Chief Judge to create a cardboard cutout, much like a picture frame, to fit over any filed brief.  If any part of the text disappeared under the cardboard, the brief was to be rejected for violation of the court's rules on margins. Period. It was an immediate and non-negotiable consequence. And that consequence could have been devastating if the time for filing the brief had run, or could not be extended. In short, no cookie for anybody. These are things lawyers should take seriously.

But the rules seem to be relaxing beyond anything I could have imagined. A cartoon Amicus brief was recently filed in the Southern District of New York in a very high profile case involving Apple and other E-book publishers.  Really, I'm not kidding, read it, here. Heck, let your toddler read it on your next drive to the grocery store. It should keep her occupied for a few minutes.

And enjoy this bit of dreck exchanged in the pettiest of disputes to ever waste a court's time. Stick figures and unlicensed images take the place of words.  A nicely traced middle finger would have sufficed, too.

I better run to Toys 'R Us and buy a fresh box of crayons and a box of construction paper....I have a brief due in a week.


Post script:  After posting this item, I came across this refreshing item, posted by notable legal blogger Robert Ambrogi, of Legal Watch.  The Wisconsin Court of Appeals has fined a lawyer $100 for a sloppy case citation in a footnote. The case was incorrectly cited, leading the court to waste time seeking the correct page and case name.  And the citation did not follow rules of citation for unreported decisions. I don't wish a court fine on any hard-working lawyer, but this is refreshing.