O’Melveny & Myers Shames Itself With 239-Page Brief

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The Wall Street Journal’s Law Blog reports this afternoon that lawyers at O’Melveny & Myers, the firm defending former Enron CEO Jeff Skilling on appeal from his criminal conviction, have filed an appellate brief with the Fifth Circuit that is 239 pages long.

To be fair, the Fifth Circuit does require a 14-point font.

Still, at 58,922 words, the brief is over four times the length allowed by the Federal Rules, which limit briefs to 14,000 words unless you get permission from the court.  The normal limit would permit a brief of about 50 pages (again, depending on the font), but I can’t recall ever seeing a case where I thought the issues really justified anything close to that.  Let alone 239.

I admit that I once wrote a brief that ended up being more than 40 pages.  It wasn’t really my fault, but I still hang my head in shame about it.  (Tip:  If you can’t make your argument in 30 pages or less, you probably need a new argument.)  The last brief I saw that was long enough to mock was a 100+ page draft of a brief that featured a 17-page introduction (itself longer than most briefs), with eleven separate main arguments, the last of which was the Dormant Commerce Clause.  (Tip: If your argument even mentions the Dormant Commerce Clause, you probably need a new argument.)  O’Melveny’s brief uses 239 pages to cover just five main points.  The brief includes:

  • A 12-page introduction;
  • Over 44 pages of facts;
  • A two-page summary of argument;
  • Beginning on page 61, a 175-page argument; and finally
  • A two-sentence conclusion, for anyone who has not crumbled into dust, or evolved into some other type of lifeform that is above our petty human concepts of "justice," before actually reaching the end of the document.

Each and every page, of course, is deeply treasured by its author(s), who could no more delete one of these pages than you would push one of your own children in front of a bus to buy yourself a few extra seconds to dodge out of the way.

Of course, that’s not the argument made in the accompanying Motion For Permission to File a Brief Exceeding the Word Limit Set Forth in Federal Rule of Appellate Procedure 32(a)(7)(B), which itself is eleven pages long.  In that motion, O’Melveny says that the case of their client (referred to as "appellant Jeffrey Skilling (‘Skilling’)" just in case you forget which "Skilling" they’re talking about) are sufficiently "extraordinary and compelling" that the extra words are justified.  The brief will raise a "large number [five] of "serious legal issues" — most briefs don’t raise these, I guess — each of which "could easily justify a full-length brief on [its] own."  And has gotten one.

Finally, the authors note that this is not the longest brief (yes, an oxymoron) ever written, pointing out that in U.S. v. Brown, the government used 69,370 words in its brief, and in U.S. v. Martha Stewart it used 56,078 words.  So you see, 58,922 words is really quite reasonable.  True, it is more than Hamlet (31,901) and Alice in Wonderland (26,698) put together, and over half of Huckleberry Finn (111,275).  But what’s extraordinary about those?

In all fairness, I should say that the brief really is very well written.  Honestly, this is outstanding legal work.  It’s just way too goddamn long.

And now, having written 595 words complaining that somebody’s brief is too long, I’ll stop.

Link: WSJ Law Blog
Link: Count words for yourself at Project Gutenberg