Benchslaps, D.C. Circuit, Laurence Silberman

Bad Briefing Begets Brutal Benchslap

This D.C. Circuit judge doesn't suffer subpar briefing gladly.

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It seems that Judge Richard Cudahy of the Seventh Circuit has some competition for the greatest concurrence ever. Check out this one-sentence gem that Judge Laurence Silberman of the D.C. Circuit just filed in Aera Energy LLC v. Federal Energy Regulatory Commission (FERC):

SILBERMAN, Senior Circuit Judge, concurring:

I wish FERC’s briefing was as clear as Judge Sentelle’s opinion.

Ouch. I heard that D.C. benchslap all the way up here in New York.

Of course, this isn’t the first time that Judge Silberman has used a separate concurrence to ladle out some judicial sauce. See, e.g., last year’s sick burn of a Columbia Law School professor (“Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.”).

And this isn’t the first time that subpar briefing has incited the D.C. Circuit’s ire. Remember the time the court ordered the parties to file new briefs “that eliminate uncommon acronyms used in their previously filed final briefs”? That order was per curiam, but some suspected Judge Silberman’s involvement.

Just how bad was the FERC briefing in this case? Decide for yourself. We pulled the briefs from PACER and uploaded them; you can check them out here (respondent’s brief) and here (respondent’s final brief).

What, you expect us to plow through all that dreadfully dry briefing ourselves? FERC that.

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UPDATE (6/17/2015, 4:30 p.m.): For those of you seeking an expert’s evaluation of the government’s briefing, here are thoughts from legal writing guru Ross Guberman, author of Point Made: How to Write Like the Nation’s Top Advocates (affiliate link):

Thanks, David Lat. You have managed to get me to read part of a FERC brief and part of a ratemaking opinion without getting paid to do either.

To cut the chase, I don’t get it. I agree that Judge Sentelle is an excellent opinion writer. But I read FERC’s fact section and argument summary and skimmed the rest, and I found everything to be clear and cogent. FERC lays out the Petitioner’s arguments and refutes them systematically, and it handles the Chevron issues well, too. The TOC is slightly cumbersome, but it previews the government’s argument (and the opinion itself) effectively. Believe me, I’ve read a lot of bad briefs, including many filed by the federal government, but this does not appear to be one of them.

P.S. It seems like if you’re going to write a concurrence just to criticize the lawyers, you should give an example or two or at least a bit of advice.

Thanks to Ross Guberman for these insights. Also, along similar lines to Guberman’s “P.S.” comment, a few readers pointed out to me that Judge Silberman should have used “were” or “had been” instead of “was” in his concurrence.

(Flip to the next page to read Judge Sentelle’s clear opinion and Judge Silberman’s snarky concurrence.)

Aera Energy LLC v. Federal Energy Regulatory Commission [U.S. Court of Appeals for the D.C. Circuit]
What the FERC? [Volokh Conspiracy / Washington Post]

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Earlier: The Greatest Concurrence Ever? Maybe…
Benchslap Of The Day: The D.C. Circuit Calls Out A Top Law School Professor
Benchslap Of The Day: LMAO At D.C. Cir.

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