Nathaniel H. Lipanovich, Stephen Rossi, and Michael G. Ermer,
Irell & Manella LLP, Newport Beach, California, for
Xiomara Costello, Deputy Attorney General; Kenneth C. Byrne,
Supervising Deputy Attorney General; Lance E. Winters, Senior
Assistant Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Kamala D. Harris Attorney General; Office
of the Attorney General, Los Angeles, California; for
Before: Alex Kozinski and Susan P. Graber, Circuit Judges,
and Charles R. Breyer, [*] Senior District Judge.
panel filed a published order granting an "Application
to File an Oversized Replacement Answering Brief."
panel granted the Application because of the complexity of
the case and its procedural history, including the fact that
the original brief answered a short pro se filing.
Judge Kozinski wrote that he does not consent to the filing
of a fat brief because the state's motion is wholly
inadequate. He wrote that in what has become a common and
lamentable practice, lawyers, instead of getting leave to
file an oversized brief before the deadline, wait for the
last minute to file chubby briefs and dare this court to
of the complexity of this case and its procedural history,
including the fact that the original brief answered a short
pro se filing, the "Application to File an Oversized
Replacement Answering Brief" is GRANTED. The brief
tendered July 25, 2016, is ordered filed.
Circuit Judge Kozinski, dissenting.
not consent to the filing of a fat brief because the
state's motion is wholly inadequate. The state had
previously filed a compliant brief that covered many of the
same points, but we ordered replacement briefs in light of
Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en
banc). The discussion of Daire in the state's
oversized brief takes up only 3 pages; the state's lawyer
gives no coherent explanation for why she needed to add 14
pages. The state mentions the complexity of the facts it
wishes us to consider, but those facts were contained in the
earlier version of the state's brief. Its remaining
explanations are equally unconvincing. To me, it seems
perfectly clear that the state filed an overly long brief
because it thought it could get away with it.
has become a common and rather lamentable practice: Instead
of getting leave to file an oversized brief before the
deadline, lawyers wait for the last minute to file chubby
briefs and dare us to bounce them. Of course, it's hard
to decide cases without a brief from one of the parties, and
denying the motion usually knocks the briefing and argument
schedule out of kilter. Denying the motion is thus more
trouble than allowing the brief to be filed and putting up
with the additional unnecessary pages. Sly lawyers take
advantage of this institutional inertia to flout our page
limits with impunity. This encourages disdain for our rules
and penalizes lawyers, like petitioner's counsel, who
make the effort to comply.
part, I don't feel bound to read beyond the 14, 000 words
allowed by our rules, so I won't read past page 66 of the
state's brief. If counsel for the state wishes me to
consider any argument in the remaining portion of her brief,
she should feel free to file a substitute brief, no longer
than 14, 000 words, which I will read in lieu ...