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Monday, January 28, 2013

The (So Far) Unmentioned Proposition 8 Litigation Tactic

There’s plenty of buzz over Hollingsworth v. Perry, the case before the Supreme Court that will determine whether California’s Proposition 8, which was approved in 2008 and amended the state constitution such that “[o]nly marriage between a man and a woman is valid or recognized in California,” is constitutional. Like many, I read the petitioners’ merits brief with interest.

But I noticed something (and, something, despite voluminous commentary, I haven't seen discussed elsewhere). And I went back to read the petitioners’ cert petition. Sure enough, the petitioners made a significant change between the petition and the brief. Did you notice? Probably not.

Well, the petitioners asked for permission to write a 20,000-word brief instead of a 15,000-word brief. That permission was denied. So, like good litigators should, petitioners changed citations. In the cert petition, petitioners cited a page in the appendix as “App. 445a.” In the merits brief, it’s “Pet.App.445a.” The “Pet.” is to distinguish the petitioners’ appendix—but that’s not the important part. The important part is the omission of a space in the citation. And, an excellent post from the Supreme Court of Texas Blog explains how that small space, in most word processers, reduces that citation from two words to one word. It doesn’t affect the brief’s readability in the slightest. But it saves dozens of words in a word count.

A small, but important, litigation tactic for all attorneys.

Posted by Derek Muller on January 28, 2013 at 09:10 AM in Civil Procedure | Permalink


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Derek, your response is a bit of a non sequitur. In your post, you seem to advocate gaming word counts by using creative punctuation in any case, not just before the Supreme Court, so it's not just a question of what that court's rules permit. A superficial search shows that at least two states (California and Delaware) have rules governing citation format (see http://www.legalcitation.net/qlocalcourtrules.htm), and creative punctuation will at least sometimes violate those rules. Interestingly, the Federal Circuit's formatting rule for citing appendixes actively encourages a format that leads to a lower word count: citations to an appendix "must be as short as possible consistent with clarity, e.g., A206 or SA17." Fed. Cir. R. 28(f).

So I probably overstated my point with respect to rules -- I should have said that gimmicky punctuation will "sometimes" violate court rules, rather than "typically" violating those rules.

In any event, my comment about rules is secondary to my primary point, which is about the ethos a lawyer projects in his briefs. If you want the court to trust you, you must appear trustworthy. A lawyer who plays games with punctuation appears shallow and sneaky, not forthright and trustworthy. The opinion that I cited in my previous comment shows clearly that goofing around with punctuation to meet a word count can backfire.

In short, creative punctuation to meet a word count is not a good litigation tactic. It buys you a few extra words at the cost (at least potential, and sometimes actual) of appearing trustworthy. That's a bad bargain, and a good lawyer wouldn't need to strike it — he'd say what he has to say within the word count, without games.

Posted by: Bobo Linq | Jan 30, 2013 2:21:41 PM

Thanks, Bobo. But, I confess, I'm not familiar with a mandated Supreme Court citation style, much less whether said citation style mandates a particular format for "Appendix" (particularly as all other "standard" case citations conform with what I understand are typical Bluebook practices) or whether this "typically violate[s]" the Supreme Court's rules, or whether there is a particular word count program that one should use. I'd be interested in a citation, though, if you have one that might answer any of these questions at the Supreme Court's level.

Posted by: Derek Muller | Jan 28, 2013 11:50:00 PM

Actually, this is an appalling litigation tactic, not an admirable one. For one thing, it will typically violate court rules, which require citations to follow some guide such as the Bluebook. Second, it shows up the lawyer who uses it as someone who looks for shallow tricks rather than someone with serious arguments -- a smart lawyer can figure out how to make his points within a word count, with no gimmicks. Only a lesser lawyer resorts to gimmicks instead of tightening the argument. Finally, if you take it too far or get caught doing it, a court is likely to chew you out. See http://scholar.google.com/scholar_case?case=3021728379699619943&q=Northbrook+Digital,+LLC+v.+Vendio+Services.,+Inc.:&hl=en&as_sdt=2,24&as_vis=1

Posted by: Bobo Linq | Jan 28, 2013 11:31:45 PM

SM --

I'm not 100% sure that the awkwardness of using citations to make an argument that otherwise would be in the text isn't a good enough check in and of itself against the practice. As for the issue of parentheticals specifically, if you were worried enough about it you could count them in the word count, or count everything in excess of some small number of words (to allow people to use legitimate "holding that whatever" parentheticals).

And while I agree that deciding what to cite and how to cite it is important, I'd make two points. First, I'm not sure that doing a word count that excludes citations really changes the calculus -- you'd still want to cite the most persuasive, on-point authority, and you'd still want to avoid cite string overkill where you tack on unnecessary cases after you cite the most persuasive ones. And second, even if people did try to game the system to some extent, I'm not sure that this cost outweighs the benefit of word counts being subject to some arbitrariness due to number of citations/citation format.

(I should add that I'd envision a system where you could submit a brief that complies with either word count -- like 10,000 words all-inclusive or 7500 excluding citations. Sort of like how you can comply with either a word count or a page limit today.)

Posted by: Litigator | Jan 28, 2013 12:41:09 PM

Litigator, that's not a bad idea, but it creates two other (closely related) problems (besides the 'how do you count' that you mention).

First, citations are as much of the argument as the text. What you cite, how you cite it, and how you structure your citations signal a lot to the reader. If, for instance, I cite three cases for a proposition, all from the relevant circuit, and dated in 2010, 2000, and 1990, I've shown the Court that this truly is an enduring principle. By contrast, if I use a cf. cite to a single case from the Western District of Nowhere in 1952, then I signal that I might not have much support for my argument. To say citations are merely technical and the argument is to brush over an important part of brief writing.

Second, that would just encourage parties to game the system by shoving their argument into massive string cites following a single sentence. You could get around that, I suppose, by requiring the attorney to count quotations in parentheticals following cites (likely how the system would be abused), but even then, it would discourage judicious citations and lead to just grabbing any possible relevant authority.

Posted by: SM | Jan 28, 2013 12:16:24 PM

I've always thought that you should be given the option to file a brief with a reduced word limit, but where the word count excludes citations. (Yes, I'm aware that someone would have to create software to to the count.)

Posted by: Litigator | Jan 28, 2013 10:40:25 AM

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