A judge in the Ninth Circuit Court of Appeals blasted an attorney for submitting an oversized brief along with a motion for leave to file an oversized brief. In Saul Garcia Cueveas v. James D. Hartley, Warden, Avenal State Prison 835 F3d 892 (9th Cir. 2016) A California assistant attorney general asked for leave to file an oversized brief at the same time that the brief was tendered to the court. Two judges on the panel granted the motion. However, the third panel member Judge Alex Kozinski descended. He said in part:A judge in the Ninth Circuit Court of Appeals blasted an attorney for submitting an oversized brief along with a motion for leave to file an oversized brief. In Saul Garcia Cueveas v. James D. Hartley, Warden, Avenal State Prison 835 F3d 892 (9th Cir. 2016) A California assistant attorney general asked for leave to file an oversized brief at the same time that the brief was tendered to the court. Two judges on the panel granted the motion. However, the third panel member Judge Alex Kozinski descended. He said in part:
“To me, it seems perfectly clear that the state filed an overly long brief because it thought it could get away with it.” He then said “This 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 rule and penalizes lawyers, like petitioner’s counsel, who make the effort to comply.”