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Tuesday, March 15, 2011

Those 14 pages at the beginning of your brief? Yeah, they count.

By Kirsten E. Small

I do a CLE program called "The Ten Commandments of Appellate Brief Writing," in which I tell my audience that a key goal of an appellate brief (other than persuading the court, of course) is not to hack off the judges. (Depending on the crowd and the proximity of my presentation to cocktail hour, "hack off" may be replaced by a more colorful term, but you get the point.)

A case out of the Seventh Circuit gives us a sterling example of how not to achieve that key goal: exceed the word limit and then offer a flimsy excuse when you get caught.

John Caudill, the attorney for two former hospital employees appealling a grant of summary judgment for Scott Memorial Hospital on the employees' qui tam action, certified that his brief to the Seventh Circuit contained 13,877 words. The Hospital counted over 18,000 words, and so informed the court in a footnote to its response brief. In response to the court's order to show cause, Caudill's response was basically, "Oops! I didn't know rule 32(a)(7) required me to count the statement of facts! And 'citations within parentheticals'--I didn't count those either. My bad."  And anyway, he continued, the case was so complex that "it was impractical to competently express [the facts and issues] within the prescribed word limit." And plus, the Hospital must have told the court about this in an ex parte communication." (As the Seventh Circuit noted, Caudill either did not read the Hospital's brief, or promptly forgot it once he did.)

The Seventh Circuit, not surprisingly, was unimpressed with Caudill's explanation. Rule 32(a)(7)(B)(iii), after all, is not exactly unclear: every word of your brief counts except the table of contents, table of authorities, statement regarding oral argument, and addenda. So, for example, the statement of facts (14 pages of Caudill's brief) counts. So do citations, even those in parentheticals.

The Seventh Circuit struck the Appellant's brief but did not dismiss the appeal; it was so clearly meritless, the court said, that it would summarily affirm instead.

The order--written by Judge Posner, exercising uncharacteristic restraint--can be found here.

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