Lawyers, and their clients, often want to file longer appellate briefs than the rules allow, or than judges desire. When the length of appellate briefs was governed by page limits, some briefs began to appear with text, which had to be double-spaced, loaded into very lengthy single-spaced footnotes. Others used wider than permitted margins in order to cram more words onto each line. Now that page limits have been replaced by word limits, it has become harder to cheat. Earlier this week, the Court of Appeals for the Federal Circuit cracked down on a creative, and stubborn, cheater and dismissed that party’s appeal.
In Pi-Net International, Inc. v. Arunachalam, the appellants were required to file a corrected opening brief. The corrected brief that the appellants then filed attempted to sneak under the 14,000 word limit by repeatedly running separate words together into a single “word” by omitting spaces between the words. For example, as quoted by the court, the citation “Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012),” which the court counted as embodying fourteen words, purportedly was to be counted as only one word because the appellants squeezed it all together as “Thornerv.SonyComputerEntm’tAm.LLC669F.3d1362,1365(Fed.Cir.2012).” In response to a motion by the appellee that complained about this maneuver, the court issued an order to show cause as to why that corrected brief should not be stricken and why the appeal should not be dismissed for failure to file a compliant opening brief.
Doubling down on their too clever by half tactics, the appellants moved for leave to file a new corrected brief. This time, instead of running words together to reduce the word total, the brief replaced case citations with abbreviations such as “TOA1” and listed those citations only in the table of authorities, making the brief far more difficult to follow. “The Appellants also use[d] abbreviations such as ‘CR1’ to cross-reference to something that was stated earlier in the brief, although it is so poorly explained that it is nearly incomprehensible.” Since neither corrected brief complied with the rules, the court struck the brief and dismissed the appeal.
It is easy enough to trim a brief, especially if one rigorously applies the “Fresh Fish Sold Here” technique, one version of which appears here. But no one should think that creative cheating will substitute for compliance with the rules, especially where a court has already caught a party cheating once.