Lawyers Urged to Make a Long Story Short

“Not that the story need be long, but it will take a long time to make it short.”

-- Henry David Thoreau

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Federal prosecutor Patrick O’Toole had a lot he wanted to say in his petition for a new hearing in a drug case -- so much to say, in fact, that he couldn’t fathom keeping his arguments to the 15 pages allotted for such briefs by the U.S. 9th Circuit Court of Appeals.

So O’Toole, like many other lawyers who have trouble cutting their prose, sent in his long brief with a request for permission to file it.

The 9th Circuit was not accommodating.

Permission “to file a fat brief,” a three-judge panel wrote, “will be granted only upon a showing of diligence and substantial need.”

The court concluded its four-page order by tossing out O’Toole’s petition and demanding that he resubmit it in a more succinct form.

The 9th Circuit panel’s stance is similar to those of many courts around the country. To keep long-winded lawyers at bay, they have set many rules to limit written arguments.

For decades, lawyers faced only page requirements. But when computers became common, judges found crafty lawyers resorting to tiny type and skimpy margins to squeeze ever more words onto a page.

“Not only did you have more stuff to read, it was harder to read it,” said 9th Circuit Judge Alex Kozinski, who was on the panel that rejected O’Toole’s brief. “Lawyers don’t quite realize what it is like to read briefs all the time and how much of a strain it is.”

New requirements have followed, specifying everything from the size of the type to the color of cover sheets.

The California Supreme Court, for example, requires a petition for review -- the initial appeal -- to be filed with 13 copies, each bound in a white manuscript cover and each including the Court of Appeal decision the party is appealing.

The limit is 30 pages, excluding the table of contents, the table of authorities and the Court of Appeal opinion. Margins must be 1.5 inches on the sides, 1 inch on top and bottom. Type may not be smaller than 13 points -- slightly more than one-third larger than the type in this article.

In the 9th Circuit, the same sort of petition is called a notice of appeal. It must be filed with 15 copies, each with a blue cover. It is limited to 14,000 words with 14-point type, or 30 pages, if it is written in a type size that allows 10.5 characters for each inch.

Though such requirements may seem picky, virtually everyone agrees that limiting lawyerly verbiage is necessary.

“There really have to be rules, because if you just let lawyers go on, think what you would get,” said UC Berkeley law professor Stephen Barnett. “Lawyers, not unlike any other writer, would run on excessively because they figure the more words they can use, the more persuasive they can be.”

Not that Barnett, who takes private civil cases, is always a model of brevity himself.

“You have touched a sore subject,” he said, “because I have right in front of me an overlong brief that we are going to have to ask the court for leave to file.”

Asked how long the brief was, Barnet demurred. “I don’t want to talk about it.”

O’Toole also did not want to talk about the court order that rejected his voluminous brief. Did he find the order amusing?

“I don’t know that I found it as funny as some,” said the San Diego-based assistant U.S. attorney.

Asked if he had experienced similar rejections by other courts, O’Toole said he could not remember. “I don’t know,” he said. “I don’t think it is something that happens often.”

In rejecting O’Toole’s request for extra pages earlier this year, the 9th Circuit recounted the prosecutor’s insistence that anything shorter was impossible.

“Counsel advises us that his original draft was 30 pages long,” the court said in the 3-0 ruling. O’Toole had stressed that he even had sought help from other lawyers to reduce the petition’s length to the 19 pages he submitted.

With the brief still 1,305 words -- or four pages -- too long, the court dryly observed: “We gather these efforts were not entirely successful.”

The ruling then quoted O’Toole: “I believe that this is as short as the petition can reasonably be and still do justice to the important and difficult issues raised in this appeal.”

But the court disagreed. To justify exceeding the length requirement, “counsel must show that the additional space is justified by something unusual about the issues presented, the record, the applicable case law or some other aspect of the case,” the court responded.

“Counsel has shown nothing of the sort; nor is it self-evident what this something might be.”

The court concluded: “We have every confidence that when the United States Department of Justice applies its formidable resources to the problem, it will come up with a petition for rehearing that complies with all our rules, yet presents the government’s position elegantly and forcefully.”

The ruling was unsigned, but anyone familiar with Kozinski’s writing would know that he had written it.

In a 1992 law review article, Kozinski wrote that a “fat brief” shows a lawyer has “a rotten case” and lacks an argument “capable of being presented in simple, direct, persuasive fashion.”

Kozinski said in an interview that one of his favorite briefs was written by a lawyer in Bellevue, Wash. The brief was short with wide margins. “The white space is more important than the black stuff,” Kozinski said.

Although most lawyers don’t realize it, keeping briefs brief is usually an advantage in a case, judges say. One good point may be obscured if the lawyer throws in five others.

“The thrust of an argument can be lost in excessive verbiage,” California Chief Justice Ronald M. George said.

Recognizing the problem, law schools these days stress writing instruction. At Syracuse University College of Law, a full-time writing program has been established to help would-be lawyers write effectively. Succinct writing is emphasized.

“Judges are very busy, and I think they appreciate a brief that gets right to the point and makes a persuasive argument,” said Daan Braveman, former dean of the law school.

There is no length requirement for judicial rulings, however, and some lawyers believe judges should practice more of the brevity they preach.

Barnett, for example, regularly chastises the California Supreme Court in legal newspapers and magazines for its “excessively long” opinions.

But Kozinski said no one is required to read judicial opinions from beginning to end, whereas judges must read the briefs to decide the cases before them. Kozinski favors keeping rulings short, though.

“The more you say, the more likely people are going to cite things out of context,” he said.

Sometimes, Kozinski’s stinginess with words makes for unusually pithy writing.

In dismissing a complaint about a hit record called “Barbie Girl,” in which Mattel Inc. argued that the name of its doll had been used unlawfully, Kozinski concluded with a blunt, six-word directive that Barbie herself might have written.

“The parties,” he wrote, “are advised to chill.”