Antitrust, Benchslaps, Brett Kavanaugh, D.C. Circuit, Department of Justice, Laurence Silberman

A Benchslap Postscript: Mo’ Words, Mo’ Problems

On Tuesday, the D.C. Circuit benchslapped a gaggle of lawyers for filing briefs with excessive acronyms. The court’s per curiam order directed the parties to “submit briefs that eliminate uncommon acronyms used in their previously filed final briefs.”

Alas, attempts to comply with this order have raised a new problem — a problem that some readers saw a mile away….

A number of lawyers, including legal writing guru Ross Guberman, came to the defense of the chastised lawyers. The gist of the defense: in complex administrative law cases, abbreviations are sometimes a necessary evil (and one that even the judges themselves resort to sometimes). See, for example, this comment from a litigtrix who used to work on admin law cases:

This acronym procedure wasn’t around when I was practicing, as I recall. I can only imagine how frustrating it would be to not be able to abbreviate stuff when you’re pushing the edge of the word count limits. Which we often were, because the front office would ask us line attorneys to add things at the very last minute.

Ah yes, the word count limits. On Twitter, Steve Klepper noted as follows about the D.C. Circuit order:

No guidance provided if the changes push the briefs over the 14,000-word limit.

And that’s exactly what happened to the petitioners, who yesterday had to file a (mercifully unopposed) motion for permission to file overlength briefs. From the motion:

Extraordinarily compelling reasons exist for granting the requested relief in this instance….

When Petitioners replaced [uncommonly used] acronyms to comply with the Court’s March 25, 2014 directive, Petitioners’ briefs expanded by several hundred words, respectively. Thus, Petitioners’ briefs now extend slightly beyond the July 9, 2013 Order’s word limits only due to the expansion of acronyms previously used to their non-shorthand formats. No other changes to the text of the briefs have been made.

The motion should be granted. After all, as Klepper noted, the court’s order did not authorize any additional editing beyond replacement of the acronyms. It would be quite cruel to bounce the briefs at this point in the litigation.

Let’s hope that Judge Silberman woke up on the right side of the bed today.

Petitioners’ Unopposed Motion For Permission To File Corrected And Overlength Briefs [U.S. Court of Appeals for the D.C. Circuit]

Earlier: Benchslap Of The Day: LMAO At D.C. Cir.

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