Recently, in Cuevas v. Hartley, ___ F.3d ___ (9th Cir. Aug. 4, 2016), Judge Kozinski dissented from an order granting the California Attorney General leave to file an overlength brief — which he referred to as a "fat" and "chubby" brief — that exceeded the word-count limit of Circuit Rule 32 (a)(7)(B)(i). He said that "no coherent explanation" was given for why the AG needed an extra 14 pages of briefing space:
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 rules and penalizes lawyers, like petitioner’s counsel, who make the effort to comply.
Slip op. at 3-4 (emphasis added).
He went on to say that he would not read past the first 14,000 words of the overlength brief, and invited the state to file, within 7 days, "a substitute brief" that met the word-count limit. Id. at 4.
The lesson is obvious: comply with the word-count limit, or provide strong justifications for requesting extra space. I do feel for the AG's lawyers, however. Judge Kozinski must have had good reasons for suggesting that they had engaged in "sly" behavior that showed "disdain" for the rules, but it is always disappointing when judges become so frustrated that they use that kind of language about members of the bar. "Sly" essentially means dishonest, which is a heavy accusation to hear from any judge, let alone a former Chief Judge of the Ninth Circuit.