Brevity Is Not Always The Soul Of Wit
The concepts of brevity and thoroughness are not contradictory, in the sense of Llewellyn’s competing canons, but the notion that something can be both thorough and concise is a nuanced one. It can be a challenge to learn and is one of the cognitive challenges of the first year of law school. That said, it’s one most student grasp by the end of the year. Carrying that forward into practice, however, requires mindfulness and discipline.
At a minimum, one expects advocates to make and offer support for their legal argument. In a decision of the Seventh Circuit issued today and authored by Judge Richard A. Posner, the court called out the defendants/appellants for outrageous conduct, “contumacious effrontery,” and litigation “shenanigans.” Of particular interest to me, though, was the circuit panel’s description and disapproval of the defendants/appellants’ brief:
The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations—states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.
The court’s words highlight the importance of fully developing one’s legal argument, recognizing that procedural history is not legal argument, and, as always, addressing the issue before the court.
Ultimately, the court dismissed the appeal, deeming it frivolous, and suggested that the district court jail the defendants for their underlying civil contempt. While this is no doubt the result of the defendants’ “outrageous” conduct below, their briefing on appeal certainly did nothing to help their case. In fact, given the considerable leeway the defendants received from the district court below, my sense is that the appeal and appellate brief made things worse.
Hat tip: How Appealing