September 24, 2014 | By Greene Broillet & Wheeler
Mark Twain (1835-1910) was the author of the novel Adventures of Huckleberry Finn, among other famous works of fiction. Twain also wrote quite a bit of nonfiction and journalism in his career. Of writing, he famously said, “I didn’t have time to write a short letter, so I wrote a long one instead.”
This quote goes to the heart of what it takes to produce decent writing of any kind, including legal writing: editing down to the essential.
Some writers are “maximalists,” and of all the various groups of professional communicators, lawyers most deserve the title. In making an argument to a judge, a lawyer unconfined by page limits is likely to write and write and write – throw every argument onto the page in the hope of finding one that sticks – until the lawyer has produced the equivalence in length of a David Foster Wallace novel.
Judges and their clerks simply do not have time to read David Foster Wallace’s novels. (Not to pick on the late David Foster Wallace, but his novel Infinite Jest sprawls 1,104 pages.) In contrast, most legal briefs should be as concise as possible under the circumstances. Page limits serve to support the unspoken best practice to get to the point.
As difficult as “getting to the point” can be, especially in complex cases, doing so is essential to writing a persuasive legal brief. When lawyers fail to get to the point – worse, when they fail to follow the rules in brief writing – it can be detrimental. In general, not following the rules could amount to legal malpractice.
The evidence likely would not support a claim for legal malpractice against BP’s lawyers in the case involving the 2010 oil spill in the Gulf of Mexico. But as Jeff Brady reports for NPR (“BP Lawyers Use Old-School Trick; Judge Not Amused“), the trick they used to fall within page limits – reducing the line spacing to less than double-spaced – earned an embarrassing bench-slap from the presiding judge.
Brady quotes U.S. District Court Judge Carl Barbier: “As a result [of the line-spacing trick], BP exceeded the (already enlarged) page limit by roughly six pages.” To paraphrase, Barbier was not pleased with having to waste his time policing the page limit rule.
To think of what could have happened: According to input Brady sought from a law professor (and former Barbier clerk), BP was lucky that the judge didn’t strike the entire brief from the record.