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26 Litig. 44 (1999-2000)
Requiem for a Brief Writer

handle is hein.journals/laba26 and id is 270 raw text is: Requiem for a Brief Writer by Katherine Bryan Jenks and Mark Herrmann Since December 1, 1998, experienced appellate brief-writers have been trickling over to the ranks of buggy-whip makers, telegraph servicemen, and elevator operators. Under recent amendments to the Federal Rules of Appellate Procedure, briefs that were constrained by manually counted page limits are now constrained by computer-counted word limits. This means that technology has consigned us to obsolescence. What a shame it is. We had such a finely honed set of skills. That was especially reflected in the apotheosis of our art, squeezing the signature block into the very bottom of the last-formerly the 25th, then just the 15th-page. Captions, for example, always got their own first (but unnumbered) page so that text could bulge right up to the top of the following page, which was boldly labeled 1. Word choices and abbreviations required a hawkish eye: Every automobile became a car, every General Motors became a GM,' every adjective and every adverb was men- tally cross-examined and discarded if inessential. Then there were the paragraph breaks. Many were the drafts that were cast again and again, while the editor swooped down upon every paragraph with a final line less than half the width of the page. The goal was to excise enough stray words from the paragraph to make it one line shorter, and the skillful could always expand the concept of stray to meet the goal. There was always something somewhere that, on reflection, could be said more pithily or termed superflu- ous or redundant or supererogatory. (No competent brief-writer, fighting to get down to that 15th page, would ever keep superfluous or redundant or supererogatory. If the concept was needed, it would plainly be surplus-35 fewer spaces.) The footnote gambit was, of course, frowned upon; no one could be sure that the judges would read the footnotes, and Katherine Bryan Jenks and Mark Herrmann are with the Cleveland, Ohio, office of Jones, Day, Reavis & Pogue. The views expressed in this article are not necessarily those of their firm (or even of the authors). relegating argument to footnote did not shorten things all that much, anyway. The appendix idea was still worse. It bordered on the unethical and was tactically unsound to boot: isolating an argument to an appendix guaranteed it would languish unread. But there were so many other elegant and effective ways of reaching 15-page nirvana. One-line headings with no extra spacing above or below. Abbreviations without punctuation or definition: FRCP, NLRB, IBM. Case citations that ruthlessly pruned all parallel cites and, in extraordinary situations, even omitted all but the first names of well known cases: Miranda, Affiliated Ute, Cipollone. (Cipollone? Well, how well known a case had to be to justify this trick depended on the level of the brief-writer's desperation.) No brief-writer worth her salt ever let a sloppily verbose citation to the record escape the red pencil. Transcript of August 12, 1998, Deposition of Joseph Smith at p. 212, Appendix at 573 slimmed down to a brisk App. 573, with a parenthetical (Smith) permitted if, but only if, space allowed. In a longer brief with many references to the record, the cumulative effect of a further contraction to A573 could win a writer as much as half a page. Nor was this highly skilled work entrusted to mere desk- bound scriveners. It called for persuasive human qualities beyond the common, as the incredulous client had to be slowly brought around to the realization that the court was interested not in the best argument but in the best 15-page argument. This notion-that a true but complex idea that would push the brief to 16 pages could survive only by muscling other true ideas out of the brief-did not comport well with many laymen's expectations of justice. The tears, the rage, the scornful hoots with which non-lawyers would greet the news were appellate practitioners' daily fare. Like the icebox, the sundial, and the rotary phone: gone, gone, all gone. What cataclysm obliterated the value of these hitherto- priceless skills? New Rule 32(a)(7)(C)(i) of the Federal Rules LITIGATION Summer 2000 Volume 26 Number 4

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