Your briefs should be, well, brief, Judge Richard Posner of the Seventh Circuit reminded lawyers in a recent opinion. In a case involving the right to a public audience in a voir dire proceeding, the judge devoted his final paragraph to criticizing the appellate lawyers for their verbosity, for which there was “no justification.”
Just how bad was were the briefs in order to justify the public scolding? The parties’ briefs, Judge Posner wrote, totaled 250 pages, in a straightforward case where less than 100 pages would have sufficed.
Waived Right to Public Voir Dire
The court’s own opinion was a fine example of succinct writing. In just seven pages, Judge Posner, joined by Judges Frank H. Easterbrook and Diane S. Sykes, upheld the convictions of two Wisconsinites. One was a mother who helped cover up her son’s murder of his girlfriend by transporting the victim’s body, which was then incinerated and the ashes dumped into a frozen lake. The other was a man who punched another; the victim fell to the ground and died later that day from his injuries. In both cases, the judges had kept the public from the courtroom during voir dire.
Though the two had a right to a public trial that included public voir dire, and though spectators were excluded from their voir dire, their lawyers “forfeited their clients’ right to an audience by failing to object to the judge’s ruling excluding the audience in whole or part,” Judge Posner wrote.
Bigger Isn’t Better
Then Judge Posner turned to the appellate attorneys. Here’s the final paragraph, in full:
And so the judgments of the district court in these two cases must be affirmed. But we do wish to comment briefly on the length of the parties’ briefs. They total 250 pages, of which 31 pages consist of the district judge’s opinion (one opinion for the two cases). The other 219 pages are the parties’ arguments. There is no justification for such verbosity. These two consolidated cases are simple and straightforward. Our opinion is only seven pages long; and while such compression is not to be expected of the parties, they should have needed, and used, no more than 100 pages at the most to present their claims fully.
Attorneys, of course, have a responsibility to vigorously advocate for their clients, and for many that means using every resource they can to advance their client’s position — including every citation, page, or word allowed. (The manifold requirements of the Federal Rules of Appellate Procedure don’t lend themselves to concise briefs either.)
But Posner’s wrist slapping is an important reminder that attorneys shouldn’t overdo it. After all, you don’t get paid by the word. And you don’t win arguments by the weight of your briefs.