In-House Counsel, Litigators

A 16-Page Brief And A 15-Page Limit

What's the magic to making briefs fit page limits? Veteran litigator Mark Herrmann shares some tips.

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Over and over (and over and over and over) again, across the decades, I’ve heard folks say: “The court has a 15-page limit on briefs. Our argument just won’t fit in 15 pages, so we’re going to file a motion for permission to file an over-length brief.”

And over and over (etc.) again, I’ve said, “Before we ask permission to file an over-length brief, please let me see the draft.”

And over and over (blah) again, we’ve miraculously discovered that we can actually fit our argument on 15 pages — and thus not run the risk of (1) being refused permission to file an over-sized brief or (2) annoying the judge, because our brief is longer than the court prefers.

What’s the magic? How do you make briefs fit page limits?

It depends on the situation. If the draft is a short, clean 25 pages long, making arguments concisely and wasting no space at all, then I’m toast. I’m a lawyer, not a magician. I can’t make what is legitimately a 25-page argument fit in less space.

But that’s almost never the situation. I’ve seen 25-page drafts reduced to 12 pages without cutting an ounce of muscle. And typically the draft is not 25 pages long, but only 16 or 17 pages, and it wastes space in all the usual ways. If that’s what I’m seeing, then the final form will fit in 15 pages.

Why?

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Because the 16-page draft brief ends with a page-long conclusion: “Accordingly, Count I fails for [reciting a reason or two]. Count II fails for [citing another reason or two]. Count III fails for [likewise]. Accordingly, for these reasons and those set forth above, defendant BigCo respectfully asks the court to grant its motion to dismiss the complaint with prejudice.”

How do we make the brief fit into 15 pages? Delete that page of repetition and replace it with a one-sentence conclusion: “The court should therefore grant BigCo’s motion to dismiss.”

Voila! No extra motion. No risk of annoying the court. And, frankly, no lost persuasion: If the brief is only 15 pages long, it’s likely that the judge (or clerk) will be able to hold in her memory through the conclusion the arguments that we made just a few pages earlier. (If she can’t, here’s some good news: She could flip back through the brief to remind herself what she’s forgotten!) I can’t believe anyone has ever lost a motion for choosing to use a short conclusion instead of one that summarizes the arguments just presented. If we’re not pressed for space, I won’t necessarily insist on the short-form conclusion. But if it’s a choice between asking permission to run over-length or just eliminating the repetition, that repetition hits the cutting room floor.

Suppose cutting the conclusion doesn’t get us under the 15 page limit; what then?

There’s more magic to be done!

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Standard of review is often a good place to start. Many, many people seem to think it’s a good idea to cite three or four cases setting out the standard of review for a motion to dismiss. Why, I ask you? The judge has been on the bench for years and knew the standard before you set pen to paper. And the parties both know the standard of review, so there won’t be a fight over this issue. If you’re up against a space limit, cite just one case for the standard of review, and save yourself a third of a page.

So, too, on summary judgment motions.

I know, I know! You cut and pasted the discussion of the standard of review for summary judgment from an old brief. That old brief devoted three-quarters of a page to the issue, and you sure aren’t going to trim that back just because you’re facing a page limit. That would require — what’s the word? — courage! About as much courage as the lion had before he visited the Wizard of Oz.

A typical brief quotes the piece of the rule governing summary judgment and then goes on for four or five sentences (each followed by a cite or two) explaining when a fact is material and who will bear burdens of proof. If that stuff actually matters for your argument, then include it; you’re duty-bound to argue the important stuff. But that stuff doesn’t typically matter. Lawyers usually include that throat-clearing in the brief only because some lawyer included it in last month’s brief — which had been copied from an earlier brief, copied in turn from a still earlier one, based ultimately on a brief that may in fact have required these arguments.

If your brief doesn’t need that stuff, remove it. (Definitely remove it if the excision permits you to come in under a page limit. Consider removing that stuff in any event, just for the sake of concision.)

Still overlong?

Change prepositional phrases — “in possession of” — into verbs — “possessed.” Consider substituting shorter words. Why does every lawyer represent people who “attempt to purchase” things? It’s okay to “try to buy” stuff. (It’s not just okay; it’s simpler, shorter, and lets the reader focus her brain on the hard issues.) In a real pinch, delete a paragraph break. If that’s what it takes to avoid filing a motion for permission to run on too long, do it. You’ll get over the pain.

There are other tricks, too (as I’ve written elsewhere). I won’t endorse here my personal favorite (although I’ve never used it) — inserting multiple page sevens into a brief — 1, 2, 3, 4, 5, 6, 7, 7, 7, 7, 8, 9, 10, 11, 12, 13, 14, 15. It’s true that the clerk may look only at the last page, see that you’ve complied with the page limit, and file your submission. But the judge may not be as amused as I am by your trick.

What’s the rule? Make every brief as short as humanly possible.

What’s the corollary? If your draft brief is just slightly over a page limit, then make your brief shorter than humanly possible. Given the choice, comply with the court’s preference.

If you edit gracefully, no one will notice the cuts, and the court may well appreciate that you didn’t waste its time.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer 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 and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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