Is The 'Kozinski Solution' To The Problem Of Overlong Briefs Gaining Traction?
Could this become a trend in the federal appellate courts?
Judge Alex Kozinski (and a pile of fat briefs)
To paraphrase Beyoncé, “You know you that [judge] when you cause all this conversation.” And “that judge” would, of course, be the Honorable Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit.
After Judge Kozinski dissented from an order granting permission to file an oversized appellate brief, declaring that he simply wouldn’t read the surplusage in the state’s “fat” or “chubby” brief, he took some flak. In addition to the comments from litigator Matthew Dowd that I mentioned earlier, Judge Kozinski got criticized by law professor William Baude, among others:
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But the Wizard of Koz had his defenders too — such as, for example, his former law clerk, Ian Samuel:
And it’s not just people who used to work for AK who support his approach. Here’s what one New York City lawyer emailed me after my original post:
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I was kind of shocked that no one discussed THIS point in Koz’s opinion:
“I do not consent to the filing of a fat brief because the state’s motion is wholly inadequate. The state had previously filed a compliant brief that covered many of the same points, but we ordered replacement briefs in light of Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc). The discussion of Daire in the state’s oversized brief takes up only 3 pages; the state’s lawyer gives no coherent explanation for why she needed to add 14 pages. The state mentions the complexity of the facts it wishes us to consider, but those facts were contained in the earlier version of the state’s brief. Its remaining explanations are equally unconvincing. To me, it seems perfectly clear that the state filed an overly long brief because it thought it could get away with it….”
Adding that context….I can see why he’d be pissed and not petulant at all. The court is letting the state get away with some shady s**t! (He should have had his clerks run a redline and attach it to the opinion.)
The most notable endorsement, however, appears in a recent filing by the Arizona Attorney General’s Office, in the case of White v. Ryan:
Along with the filing of the opening brief in this capital case counsel, once again, filed a motion requesting this Court to accept an oversize brief — close to double what this Court’s Rules permit in a capital case. White’s opening brief contains 37,031 words—16,031 words over this Court’s limit of 21,000 words. See 9th Cir. R. 32−4(1). As explained below, Respondents request that the Court accepted the oversized brief as filed to avoid further delay in this case, but address the problem of oversize briefs as recently suggested by Judge Kozinski of this Court.
The state then proceeds to identify the many virtues of what might be dubbed the “Kozinski Solution” to the problem of fat chubby overlength briefs — namely, “for this Court’s judges to simply stop reading after 21,000 words.”
Could this become a trend, both in the Ninth Circuit and beyond? If it does, I suspect there are many overburdened judges — and law clerks — who wouldn’t complain.
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(Flip to the next page to read the Arizona Attorney General’s full filing.)
Earlier: Judge Kozinski Won’t Read Your ‘Fat’ Or ‘Chubby’ Brief
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
