Here's a neat little dissent by Judge Kozinski.
The panel decides to allow the respondent to file an overlength brief. Judge Kozinski, by contrast, is not persuaded. He says:
"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."
I find that plausible. You decide that there are things you need (or want) to say, those things take up space, so you ask for extra pages, thinking that the court will go ahead and say "Yes".
Judge Kozinski continues:
"This has become a common and rather lamentable
practice: Instead of getting leave to file an oversized brief
before the deadline, lawyers wait for the last minute to file
chubby briefs and dare us to bounce them. Of course, it’s hard to decide cases without a brief from one of the parties,
and denying the motion usually knocks the briefing and
argument schedule out of kilter. Denying the motion is thus
more trouble than allowing the brief to be filed and putting up
with the additional unnecessary pages. Sly lawyers take
advantage of this institutional inertia to flout our page limits
with impunity. This encourages disdain for our rules and
penalizes lawyers, like petitioner’s counsel, who make the
effort to comply."
I find Judge Kozinski's point here even more plausible. It is indeed more of a hassle to bounce a brief and require a substitute than it is to simply allow the oversized brief. And attorneys know that. This reality encourages the practice that Judge Kozinski identifies. Seems right to me.
But there's an alternative explanation as well. One that Judge Kozinski doesn't explore, but that to me may be an even more likely explanation for most (but not all) oversize brief requests.
The reality is that lawyers -- like many other people -- are fairly lazy. And/or overworked. So if a brief is due on a given day, it often doesn't start coming together until shortly before that day. That's not to say that there's not work done on the thing beforehand. But a complete draft often doesn't get created until fairly close to the deadline. Sometimes very, very close.
As a result, my strong belief is that lawyers often don't know they'll need the extra pages until very close to the deadline. Now, should they know earlier? Sure. And people should procrastinate less, should be more friendly in restaurants and while driving, etc. But the reality is the reality. Lawyers often don't know -- or at least know for sure -- that they'll need the extra space until the very end.
Which is why Judge Kozinski sees what he sees: lawyers waiting until the last minute to file briefs that are oversized, alongside a request for the extra pages.
It's not that those lawyers are deliberately violating the rules. If they'd have known they'd need the extra pages earlier, they'd have asked for 'em. They just didn't know.
Which is not to say that Judge Kozinski's alternate explanation isn't somewhat true as well. Lawyers may well feel comfortable waiting until the last minute in part because they're fairly confident that last-minute requests will be granted. But the recognition that lawyers procrastinate nonetheless makes a complete explanation of the process, in my mind, less "evil" than the partially incomplete story that Judge Kozinski lays out.
So, yeah, lawyers should get it together earlier, and at present, there isn't a big "hammer" to make 'em do so. Fair enough.
But I think the true story is a little more complicated than the explanation from Judge Kozinski's side of the bench.
Judge Kozinski ends his dissent with the following:
"For my part, I don’t feel bound to read beyond the 14,000
words allowed by our rules, so I won’t read past page 66 of
the state’s brief. If counsel for the state wishes me to
consider any argument in the remaining portion of her brief,
she should feel free to file a substitute brief, no longer than
14,000 words, which I will read in lieu of her oversized brief,
so long as it is filed no later than 7 days from the date of this
order."
Well, I guess Judge Kozinski can do whatever he wants. No one's going to strap him down and make him read anything he doesn't feel like reading. On that same level, if he wants, he can refuse to read the entire brief, make funny faces at counsel at oral argument, put a frowny face on any opinion he writes in the matter, etc. That's all within his power.
But I do wonder whether that power's rightfully exercised here. I mean, whether the brief is accepted is subject to a vote of the panel. And they voted to accept the brief. Judge Kozinski disagreed, but he lost.
Now, again, that doesn't mean that the other two judges can physically force their colleague to read the brief. But I wonder if it doesn't mean that Judge Kozinski has a moral obligation to recognize that he has been outvoted and accede to the will of the majority, at least on this point. Imagine, for example, that the panel voted to require the parties to brief X, but Judge Kozinski dissented from that particular order. Would it really be okay for Judge Kozinski to say "I'm not even going to read the briefs on that issue?" I think not. And this isn't just a hypothetical: the Supreme Court grants certiorari (or adds) particular issues all the time, and the dissenting justices on the Court have never (in my mind) said in response that since they disagree with that order, they're going to refuse to follow it. In matters such as these, it seems to me like the majority rules. And probably should.
Now, I could probably come up with some hypotheticals in which a judge would entirely rightly refuse to follow the orders of his colleagues. Because there are, for sure, limits upon the ability of two of the three judges to force the third to do what they want.
But it doesn't seem to me that this is one of those cases. This is an issue of page limits, for goodness sakes. It's a minor point. Yeah, I may prefer briefs that are double spaced and in Times New Roman font. But if my colleagues vote to allow briefs that are single spaced and in Courier, you know what, I'll just deal with it. Rather than saying that, even though I'm outvoted, I'm going to refuse to read the brief unless I get a special one for me that complies with my particularized desires.
Look, I don't like overlength briefs any more than Judge Kozinski does. And, as I said, I think he has a decent point about the incentive effects of the existing practice (despite the fact that I think the story is actually a bit more complicated that the one he lays out).
I'm just not sure that the right solution is the one that Judge Kozinski adopts at the end of his dissent. It may not be a petulant response. But it does seem to me one that may be unjustified on the facts of the present case.
