"In 76,235 words, rambling and ranting over the opening brief's 202 pages, appellant's counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy--for example, gratuitously and wrongly insulting her client's daughter (the minor in this case) by, among other things, stating the girl's developmental disabilities make her 'more akin to broccoli'."

The full opinion denouncing the brief is available here. Can anyone imagine actually submitting a brief like that? I'm known for being fairly wordy, and even I can't imagine rambling on for 202 pages! It's nice to see that theere are some things the courts still won't stand for. (Even in California! )

WOW what a great read (excluding of course the case details ) !

Nice to see a court get as sick of the BS as we do, but who took the time to count all those words

In some instances when briefing in the federal courts a word count is required at the end of the document. (With electronic filings on the increase, we can probably expect something similar in our state courts eventually). Thankfully, Word and WordPerfect have such a tool at hand. Can you imagine performing the task by hand though!

PS. That was quite a scolding!

I haven't gotten past page 11 of the brief yet, but the court's opening salvo does remind me of my Torts professor, "Perhaps some of you should consider focusing your career goals on something other than the practice of law."

Does anyone know if the word count problem in microsoft word was fixed. When I worked at the AG's office I remember a federal court opinion out that the way word counts were done was incorrect. That is why the AG used WordPerfect. Can't remember the exact problem and would have to look up the case again, but does anyone out there remember this problem?

I don't know if this is the court's reason, but I remember being told not to use Word because they use the standard typist trick of counting every five characters as a word instead of tracking the actual words used. It would usually average out pretty close, though.

The quick brown fox jumped over the lazy dog. Dr. Lazlow Rasmussenstein engenders the archetype sensibilities of a 19th century Victorian charmer.

According to Word XP, this example contains 22 words and 146 characters (including spaces). Manual count is 22 words. If Word XP was counting every 5 characters as a word, the word count would be 17. So, this short example indicates to me that the word count function in Word XP works correctly.

I'm a relative newcomer to the profession, and I hope that things don't get much worse than this brief and that they don't get this bad very often. Having, however, already come across a few stinkers in my so-far very short career, I am prompted to ask a question. Is there anything that that can be done about this?

Certainly it is easy for the court to respond to something like this in exactly the way that it did. It has a ready outlet: the opinion. But what about the rest of us? Is there anything that you can do as an attorney (and more precisely as a prosecutor) when you are faced with a brief that is so poorly written, poorly researched, poorly argued, vindictive, or some combination of these things that it is clear from the first reading that (a) the client's interests are not being served, (b) the writer has almost certainly accepted money from someone (either the client or the state in court-appoint cases) and produced nothing in return, (c) the court is going to have to waste a lot of time dealing with it, and, perhaps worst of all, (d) you're now in the position of having to do double duty.

By that last part I mean that even a brief that is really horribly written is going to raise some legitimate issues. The problem may be that it's simply impossible to figure out what they are. So as opposing counsel, you're now in the position of having to sift through it and pick out what looks to be the most compelling arguments in the brief, research them yourself, since you've had no help from the appellant, brief them for the court, and respond to your own arguments.

I have not yet had to respond to one of these, but I have been told by more experienced attorneys that this is not an uncommon position in which to find oneself. And, truly, if the problem is widespread (or even if it isn't, as I believe I would want a remedy even if it only happened to me once) then it seems like there should be some sort of procedure for dealing with it.

A few options have occurred to me, (informing the defendant that his lawyer is not doing him any good; referring the lawyer to some of the available materials out there on more effective appellate advocacy; trying to move the court to do something about it, such as reject the brief, sanction the lawyer or hold him in contempt; etc.) but there are, of course, problems with each. Some of them I think might actually be ethics violations (like talking directly to the defendant).

I am interested in knowing if anyone has any advice about how to handle this sort of thing.

--------

The comment about the Torts professor above reminded me, eerily, of everybody's favorite Contracts professor, Professor Kingsfield, who said: "Mr. Hart, here's a dime. Take it. Call your mother and tell her there is serious doubt of your ever becoming a lawyer."

[This message was edited by David Nowlin on 04-13-06 at .]

[This message was edited by David Nowlin on 04-13-06 at .]

A few years ago, I used the word count tool on Word for pleadings in a death penalty case in the Fifth Circuit. No problems.

David,

Unfortunately, I don't think that's a problem that we are really able to address. As you pointed out, most of the potential solutions would at the very least raise more ethical problems than they solve! (I can't imagine calling up the defendant and telling him his attorney is terrible, no matter how tempting it might be!) The most I've ever done is request that a point be dismissed as inadequately briefed if it really doesn't raise an issue.

I think the only solution lies with the courts. Trial courts can stop appointing the attorneys who do such a substandard job, since ours at least assure us that they read the briefs in their cases. And the appellate courts hold most of the cards -- they could start sending briefs back to be rebriefed, note truly bad jobs in their opinions as here, or send a copy of the brief and their opinion on to the State Bar ethics committee.

In a very bad case, you might want to file in the relevant appellate court a motion to strike the defense brief. It is something to reserve for the very worst, but it has been successfully done. The appellate court will order rebriefing. If you consider this approach, you might want to contact the Tarrant County DAs Office Appellate Division. The attorneys there have urged at least one motion with positive results.

I agree. I would file a motion to require re-briefing, indicate the reasons, and send a personal copy to the judge who appointed the attorney.