Businessman hitting the books

A heretofore unquestioned rule of appellate advocacy: Less is better. The rule takes many forms–anything that doesn’t help, hurts; we call them “briefs” for a reason; sit down and shut up–but the basic idea is that we have panels of very busy, very smart judges handling appeals. Let’s be respectful of their time and get to the point. Also, every time we keep talking, or add a seventh assignment of error, or re-engage on rebuttal, we materially increase the chance that we’ll say something stupid and torpedo our appeal. This is very nearly one of the unalterable rules of the appellate universe.

But as it turns out, the rule has its limits.

A few days ago, Judge Posner uncorked a blistering opinion in Central States, Southeast and Southwest Areas Health & Welfare Fund v. Lewis, Case No. 13-2214. Here’s the relevant part of the opinion, which discusses the appellants’ brief.

So we come to the merits. The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations—states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.

A “gaunt, pathetic document”? This is literally the first time that I have ever heard an appellate judge complain that a brief was too short.

Writing nerd that I am, I had to take a look at the offending work product. And it really is a remarkable little thing. Judge Posner’s description of the brief is dead-on, if a little sharp. The summary of argument is four lines long–which is to say, one line longer than the only subject heading in the argument section. And in its entirety, that argument section runs to a whopping nine-and-a-half lines. Judge Posner expends more words making fun of the brief than the appellants spent arguing their case.

On the other hand, the brief is set in visually pleasing font from the century family. Butterick would approve.

The upshot here is two-fold: First, Judge Posner is still brilliant, funny, and mean. My man crush on him remains justified. And second, the point of writing a brief is to help the court. Sure, anything that doesn’t help, hurts–but you have to actually give the court something helpful to work with in the first place.