SUNTHARALINKAM v. GONZALES - Dissent

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2007
• Docket: 04-70258
• Status: Published

Opinion

FILED Suntharalinkam v. Gonzales, No. 04-70258 MAY 18 2007

CATHY A. CATTERSON, CLERK KOZINSKI, Circuit Judge, dissenting: U.S. COURT OF APPEALS

In their joint motion to file supplemental briefing, the parties agreed to

abide by Fed. R. App. P. 32, which, among other things, limits the length of briefs

to 14,000 words. Fed. R. App. P. 32(a)(7)(B)(i). Petitioner now seeks leave to file

an oversized brief because “[t]here are a number of issues involved in this case,”

which pretty much describes most of our cases. Petitioner offers no other reason.

The case for extra pages is particularly weak here because petitioner has

already filed a 24-page principal brief and a 9-page reply brief. Two amicus briefs

have also been filed in support of petitioner, adding another 33 pages to his side of

the argument. The government’s brief, which defends the same territory, came in

at 12,242 words.

I find it vexing that petitioner did not file his motion in time so we could

rule on it without disrupting the briefing schedule. Instead, he sent in a non-

conforming brief the day after it was due, then waited three weeks to file the

motion for leave to file the fat brief. Such tactics force us and opposing counsel to

choose between consenting to the filing of a non-conforming brief and disrupting

the briefing schedule. I don’t believe we should reward such cavalier behavior on

counsel’s part. I would therefore deny the motion and give petitioner 5 days to file page 2 a substitute brief conforming to Fed. R. App. P. 32. This would still leave about a

month before oral argument for us to read the revised brief.

Not only do we abet the flouting of our rules, which must be discomfiting to

those lawyers who abide by them, we also do a disservice to the litigants. See

Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 231 (2d

ed. 2003) (“All the judges quoted in this book have one bit of advice in common:

emphasize the muscle of your brief and cut out the flab.”); see also id. at 234

(“The poorest, least persuasive briefs are all too often those that the lawyer has not

taken the time to reduce to its essence.” (quoting Chief Judge John M. Walker,

Jr.)). Here, tightening up petitioner’s brief to conform to our rules would not only

help conserve judicial resources and promote respect for our rules, it would better

serve the client.