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Oral Argument Meltdowns:

Eugene'sOrin's post on disastrous oral arguments (make sure you listen all the way to the end) reminds me of an oral argument that I observed while clerking:

JUDGE: Counsel, your brief does not comply with this Court's rule requiring one-inch page margins.

COUNSEL: Your honor, I believe it does.

JUDGE: I don't think so.

COUNSEL: Your honor, I'm pretty sure it does.

JUDGE (raising hand from bench): Here, I have a ruler--would you like me to measure?

COUNSEL: Um, no honor, that won't be necessary. Uh, could you please just sanction me, not my client?

reader:
7.11.2005 12:43pm
reader:
nevermind. The text of this argument has already bee posted by Orin. . . one of the perils of reading blogs in reverse chronological order.
7.11.2005 12:47pm
Paul Gowder (mail):
See, this is at least gutsy. (cf. the civil disobedience post).
7.11.2005 12:55pm
aaa (mail):
What's so bad about this? The lawyer thought he had the formatting right, then realized that the judge, having a ruler in his hand, was in fact correct. Then the lawyer did the responsible thing. What should he have done differently? (Other than, of course, not get into the situation in the first place.)
7.11.2005 1:56pm
Steve Smith (mail) (www):
Jeez, what kind of wackjob spends his time on the bench measuring margins on briefs?
7.11.2005 2:23pm
Cheburashka (mail):
Sometimes you do see appellate briefs where the lawyer has obviously tinkered with formatting - in the most juvenile way - to get around a page limit.

Its pretty annoying, especially for an older judge, to try and read a brief in 8 point type. And for everyone involved when the attorney hasn't had the judgment to try to be selective about which arguments to make.
7.11.2005 2:25pm
Andrew E. Adel (mail):
aaa: Possible, but it seems more likely that the lawyer knew his margins were too small, and hoped to bluff his way out of it.

Steve Smith: Sometimes that sort of thing is just noticeable at a glance. I assume this is especially true for people who are accustomed to seeing compliant briefs all the time.

What I'd like to know is, who convinced this lawyer that making his brief longer would be an advantage? I'm not sure I've heard or read from a single judge who didn't say that one of the top ways to improve a brief is to slim it down.
7.11.2005 2:37pm
Kevin:
<blockquote>
Its pretty annoying, especially for an older judge, to try and read a brief in 8 point type. And for everyone involved when the attorney hasn't had the judgment to try to be selective about which arguments to make.
</blockquote>

Judges read briefs?
7.11.2005 3:22pm
Zywicki (mail):
Steve, Cheburashka:
Cheburashka has it right--it was an effort to evade the page limits. The same brief also had the old trick of jamming text into footnotes for the same reason. So it was pretty clear what the lawyer was up to, which is why the lawyer didn't call his bluff in the end.

What was especially funny was that those of us watching the argument from the audience had no idea that the judge had taken a ruler with him to the bench--so when he whipped it out and brandished it from behind the bench we almost fell out of our seats.
7.11.2005 4:57pm
Anderson (mail) (www):
Jeez, what kind of wackjob spends his time on the bench measuring margins on briefs?

This was the 5th Circuit, I infer, but if you'll take a gander at the 7th Circuit's treatise on brief formatting, you'll be impressed how many ways there are to go wrong. (I would *love* to know who wrote this thing ....)
7.11.2005 7:32pm
zzyz:
Anderson: I have it on good authority that the 7th circuit treatise is the work of Judge Easterbrook.
7.11.2005 9:32pm
Zywicki (mail):
Anderson:
The judge who wielded the ruler in the case I described also was the Chair of the rules committee for the 5th Circuit that year, so I think the whole issue of formatting was on his mind in an unusually intense fashion.
7.12.2005 11:05am
nc_litigator (www):
my guess is the arguing attorney left an associate to handle the technical brief details, and had no idea the margin rules were violated. or at least not obviously violated. in north carolina we had a controlling appellate case for awhile which dictated specific margin, font, and lines-per-page rules that weren't in any rules of procedure. but our supreme court has no page limits.
7.12.2005 12:06pm
David Chesler (mail) (www):
what kind of wackjob spends his time on the bench measuring margins on briefs?

Nothing whacky about having a ruler (or a dollar bill folded in sixths) and other light, portable tools of one's trade on hand. (Can't speak specifically about on benches and under robes.)

Interesting set of rules and guidelines from the 7th Circuit. Old habit of double-spaces after periods dies hard. (I no longer double-clutch, I suppose I can learn. Nor do I construct exclamation points by holding the backspace key while typing apostrophe [prime] and period -- my Mom [a professional typist] says people shout a lot more now that they have have built-in exclamation points.) The treatise could have mentioned that underlining is an old typewriter shorthand for "make this italic". I don't know what the current standards for undergraduate (and secondary) bibliographies -- they used to require underlining.

The treatise says "There are 72 points to the inch". Sort of. See http://cgm.cs.mcgill.ca/~luc/measurements.html There are 72 PostScript points to the inch (and this convention is carried to most software today.) There are approximately 72.27000072 Anglo-Saxon hot-metal printer's points to the inch, each point being 0.013837 inches.
7.12.2005 12:34pm
Anonymous Coward:

I have it on good authority that the 7th circuit treatise is the work of Judge Easterbrook.


When I was a newby law review staff member we had a to-do with Judge Easterbrook over our substitution of em-dashes for en-dashes (or vice versa, I don't recall) in his article.

For the typographically uninformed, an em-dash is the width of an "m" (and the same width as the point size), the en-dash is the width of an "n" (half the width of an em-dash). Neither of which should be confused with the hyphen.

This article tells you more than anybody but Judge Easterbrook probably wants to know about typography.
7.12.2005 1:21pm
Anderson (mail) (www):
I had suspected Easterbrook, but having no personal knowledge (just a "he's that kind of guy" impression), I'm happy to have my suspicions confirmed.

Posner, I suppose, wouldn't write a format guide that's practically a book; he'd write an actual book about pragmatism and formatting.
7.12.2005 2:47pm