7th Circuit, Frank Easterbrook, In-House Counsel, Litigators, Practice Pointers

Inside Straight: Breakfast With Easterbrook

At a breakfast last week, the Seventh Circuit Bar Association learned the true meaning of going “from the sublime to the ridiculous”: As Judge Frank Easterbrook took his seat, I approached the lectern.

I won’t burden you with the subject of my remarks (regular readers of this column could probably guess), but I’ll share the sublime. Judge Easterbrook said one thing, and he failed to mention another topic that he often raises.

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook last week chose not to discuss a different subject. One of the other folks who attended the breakfast meeting told me that the judge often raises this in his talks . . .

Judge Easterbrook often tells audiences that he expects different quality briefs from different authors — he excuses poorly written briefs filed by certain overworked government agencies or small and unknown law firms handling low-stakes cases that plainly won’t bear any substantial legal expense. But the judge expects different quality briefs in high-stakes cases being handled by nationally prominent firms. The most frequent mistake Easterbrook sees in briefs prepared by highbrow firms is this: “Don’t open the brief by quoting the terms of the asset purchase agreement. First, tell the court what industry you’re in and what goods or services you sell. Only then can a reader understand the context of your particular dispute.”

(I feel slightly guilty putting quotation marks around words that I never heard spoken, based on a second-hand report of what the speaker sometimes says. And I feel affirmatively nervous using those quotation marks in this public forum when the speaker is as prominent as Judge Easterbrook. But what the heck — I’m feeling wild here. I’ll hope that you (and he) understand the game.)

After breakfast, I got back to my office and popped open a brief that had come across my computer while I was gone. The opening sentence of the brief? “The 2000 EUSLA gave [BigCo] the right to ten CPU-based software licenses.”

Karma! (Bad karma, maybe, but karma.) This was a perfectly good law firm opening a brief by quoting the terms of an asset purchase agreement. (Yeah, yeah: It wasn’t an asset purchase agreement; it was a software license agreement. But surely you understood my clever analogy.)

This opening sentence thus sinned twice: First, it used alphabet soup — the alphabetical short-form EUSLA that would be utterly incomprehensible to an uninformed reader (as judges presumptively are). (I’ve railed on the topic of alphabet soup before.) You can’t start a brief with the letters “EUSLA” and expect a reader to know what you’re saying. If you’re dealing with, as these guys were, an “end-user software license agreement,” then call the darned thing a “software license agreement” (or maybe a “license agreement”), and give your poor reader a chance.

Second, the brief committed what I’ll forevermore call the “Easterbrook error”: It opened by effectively quoting the terms of the asset purchase agreement. If your case involves a software license, then you really must first explain, at a minimum, that Party A bought software licenses from Party B. (You may actually need somewhat more than that.) Only after a sentence or two of introduction will an ignorant reader understand why he or she should care about the terms of the contract.

On reflection, I guess that I, too, went from the sublime to the ridiculous last Tuesday — first hearing at breakfast about a point that Judge Easterbrook often makes about a brief-writing error and then promptly witnessing that very error.

I guess I’m lucky the judge wasn’t talking about capital punishment.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link) and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide. You can reach him by email at inhouse@abovethelaw.com.

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