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On Brevity

What do you think the reaction would be if you gave a court 152 pages of briefing in your next single issue case?

(I actually had a trial lawyer request that I move for nearly that many additional pages. I refused.)

Well the 11th Circuit recently graced the bar and the public with 3 opinions totaling 152 pages in a habeas corpus proceeding.

The case involved an inmate who killed a police officer in 1995, my first year of law practice. The single question was whether the Georgia Supreme Court had abused its discretion in denying the inmate's ineffective assistance claim.

The opinion is here, and an ABA Blog story here.

To be fair, one of the opinions was a three page concurrence from Judge Edmondson who refused to join principle opinion because it was just too long.

To save you reading the 100+ pages in the main opinion, click here for the concurrence.

After the jump some very brief thoughts on why we write so much, and who gets hurt.

Is legal writing getting longer and longer?

Judge Edmondson sure thought  so. He noted that long opinions seemed to happen more and more.

At first blush, one might suppose this has something to do with lawyers being paid by the hour, but I doubt that is the case. Quoting Mark Twain,* Judge Edmondson noted that it takes more time to write something short and effective than it takes to write something long. If money were the only object, everyone would write both short and well.

I think this gusher of words can be explained by technology.

We have abandoned typewriters and carbon paper in favor of word processors. We no longer need to retype a whole document or a whole page to make changes, to insert text, or to smear on a copious coating of footnotes. In fact, we often do not need to type at all. Just copy and paste.

Said differently, computers make it very easy to write, and they have made it even easier to write badly.

The cynic might say we ought not be concerned so long as we are highly paid for this bad writing, but writing both badly and long is not a victimless crime. 

Judge Edmondson noted some of the mischief that arises from overlong opinions:

  • Other judges (or their staff) must take the extra time to check them before signing on.
  • The law becomes opaque to the public and even to lawyers.
  • Even the expert reader often will not discern the wheat from the chaff, the holding from the dicta.
  • All those extra statements have a way of percolating up as if they were the law in subsequent cases.
  • And all those extra statements aren't necessarily right.

The harm of an overlong brief is also bad:

  • Your magnum opus brief might just be "long enough to avoid being read"**
  • If it is not read, it will not persuade.
  • Even if it is read, the reading requires extra work.
  • Readers are looking for a reason to put your brief down. You are giving them that reason.

The object of this highly-paid pursuit is not deforestation. The object is not to shine the spotlight on one's own scholarship.

The object is persuasion.

Persuasive writing is short. Indeed, it is nearly invisible.

 *“If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare.”

 **Winston Churchill

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume II, Number 264
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

713-220-3981
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