The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Monday's Federal Circuit decision in Pi-Net Int'l Inc. v. JPMorgan Chase & Co.:
On March 17, 2015, this court directed Appellants to show cause why the first filed corrected brief should not be stricken and why this appeal should not be dismissed for failure to file an opening brief in compliance with the court's rules. That order was in response to a motion from JPMorgan that noted that Appellants' opening brief exceeded 14,000 words if, inter alia, Appellants had not deleted spaces between various words in the brief.
The Federal Rules of Appellate Procedure limit an appellant's opening brief to 14,000 "words." Fed. R. App. 32(a)(7). Appellants attempted in their first corrected brief to create "words" by squeezing various words together and deleting the spaces that should appear between the words. For example, the following is not one word, although that is how it appears on page 3 of Appellants' first corrected opening brief:
Instead, when written properly, it is 14 words: Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). Similar matters appeared throughout the brief.
In the alternative, Appellants move for leave to file a new "corrected brief." The new corrected brief does not bring the actual word count below 14,000 words. For example, the new corrected brief would, instead of deleting spaces between words in case citations, replace various phrases or case citations with abbreviations such as "TOA1" and list those citations only in the table of authorities. The Appellants also use abbreviations such as "CR1" to cross-reference to something that was stated earlier in the brief, although it is so poorly explained that it is nearly incomprehensible. Neither the previously filed brief nor the most recent proffered corrected brief comply with the court's rules. Instead, they represent an attempt to file briefs that, if written properly, exceed the permitted word limitation.
Appellants have failed to show cause why the brief should not be stricken and why the appeal should not be dismissed. Pursuant to the court's March 17, 2015 order, the appeal is dismissed.
Seriously—the brief has these space-removed citations all over the place. Yow.
Now I e-mailed William J. Weidner at the Bell Law Firm in Oregon, who was the lawyer on the brief, to ask for his side of the story. I instead got a response from Dr. Lakshmi Arunachalam, who was the co-plaintiff as well as the founder of Pi-Net. Dr. Arunachalam reported that she "wrote every word in the brief," is "responsible for its formatting," and views it as "impeccable," in "form as well as the substance." (Compare the Shipley / Schindler Supreme Court saga.) I should also note that Dr. Arunachalam sent me an attachment alleging judicial "corruption," "clear bias," "conflicts of interest," and—yes—defendant's supposed "procedural games."
So at least this doesn't seem to be a situation where a lawyer's error is shortchanging a client who is relying on the lawyer's work; while I naturally don't know the nature of the lawyer-client discussions here, I expect that Mr. Weidner told Dr. Arunachalam that this sort of thing won't look good, and Dr. Arunachalam just barreled on ahead anyway. Still, if you're ever tempted to try to avoid word limits this way, either as a lawyer or as a client, just say no.