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Excessively Rambling Briefs Do Not Persuade. No Kidding!

Posted By Cliff Tuttle | September 14, 2017

No. 1,352

Image: guardian.com

How would you like to open your mail and receive an opinion on your appeal that begins like this?

“We note at the outset that at seventy-eight pages, Appellant’s brief is more than two and a half times the ‘safe harbor’ maximum of thirty pages (2.6 times, to be precise). Counsel for Appellant certifies that the brief consists of 13,971 words, twenty-nine words less than the specified limit of 14,000 words prescribed in our rules of appellate procedure. (See Certification of Compliance with Word Count Limit, 3/24/17); see also Pa.R.A.P. 2135(a)(1).

However, on independent examination, we confirm a count of 18,519 words, making the brief about a third longer than the maximum permissible length, without permission. It appears that counsel, or his word processor, misstated the count by over 4500 words (4548, to be precise), failing to comply with the requirements of Pa.R.A.P. 2135.

We could issue a rule to show cause order, with the possible sanction of quashal unless counsel provides an adequate explanation for the discrepancy. See Commonwealth v. Spuck, 86 A.3d 870, 877 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014).

However, we decline to do so for reasons of judicial economy. While the brief is excessively rambling and could have benefited from more careful editing, nothing in the available record suggests that reworking the existing materials would furnish any proper basis to disturb the jury’s verdict. To allow (or require) another round of briefs would place an additional burden on the Appellees, and their counsel, and merely delay the inevitable.

Accordingly, to the extent possible, we will review Appellant’s non-compliant brief on the merits, despite the obvious procedural defects.”

Florence James v. Albert Einstein Medical Center, Superior Court, No. 1723 EDA 2016 (Opinion dated September 12, 2017)

Judges, especially appellate judges, have to read a lot of stuff.  If you send in an “excessively rambling brief”, how do you expect to hold your reader’s attention? Here’s a few points that we all know but often forget.

  1. Don’t preach.
  2. Be interesting.
  3. Tell a story.
  4. Purge details that don’t matter that much.
  5. Say it only once in the main body of your argument.
  6. Focus on your best case for each argument.
  7. Remember that experienced judges have heard it all.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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