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Judge Kozinski Refuses Excessive Brief

Aug. 5, 2016, 8:49 PM

With all that’s happening in the world today, the U.S. Ninth Circuit Court of Appeals’ Judge Alex Kozinski has no time for calculating lawyers who foist their long-winded briefs upon him and other judges without even asking.

Such behavior has become woefully typical, he recently suggested.

“This has become a common and rather lamentable practice: Instead of getting leave to file an oversized brief before the deadline, lawyers wait for the last minute to file chubby briefs and dare us to bounce them,” Kozinski wrote .

[caption id="attachment_24604" align="alignnone” width="511"][Image “Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals arrives at court in San Francisco, California, U.S., on Tuesday, January 11, 2011, shortly before hearing arguments in a lawsuit against Facebook, Inc. Tyler and Cameron Winklevoss are contesting a $65 million settlement agreement with Facebook Inc. founder Mark Zuckerberg who they accuse of stealing their idea for the social-networking website. Photographer: Noah Berger/Bloomberg News.” (src=https://bol.bna.com/wp-content/uploads/2016/08/m787161-e1470423807594.jpg)]Kozinski of the Ninth Circuit Court of Appeals in 2011. Photographer: Noah Berger/Bloomberg News[/caption]

That came from a recent dissent filed on Thursday, in which Kozinski refused to sign off on a request from a lawyer in the California Attorney General’s office to file a brief that exceeded the normal word limit. As the Los Angeles Timesreported earlier, the state lawyer had pointed to the complexity of the case, which involved a prison inmate’s appeal of a robbery conviction.

The two other judges on the panel, Susan Graber and Charles Breyer, had signed off on an “oversized” brief. Not Kozinski.

“I don’t feel bound to read beyond the 14,000 words allowed by our rules, so I won’t read past page 66 of the state’s brief,” he wrote.

He even suggested excessive writing without permission is a personal affront: “I do not consent to the filing of a fat brief.”

Showing a bit of FOMO, Kozinski added that if he’s going to miss anything really important, the state can file a new 14,000-word brief within the next week.

Mainly, it seemed like he wanted to call out “sly” lawyers, who, recognizing that judges need briefs to decide cases, make it a habit to file overly long briefs, and only ask for permission to do so after the fact.

There’s no way judges win in that scenario because if they deny the page limit request, they don’t get a brief, Kozinski wrote. Waiting for a right-sized brief throws the whole schedule “out of kilter,” he complained.

The thing is, lawyers aren’t generally known for giving quick, short answers to anything. Going to be interesting to see how this one plays out.

Write to us at BigLawBusiness@bna.com.

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