CYA appellate advocacy is not necessarily effective appellate advocacy.

The Wall Street Journal's Law Blog reports here that lawyers at O'Melveny & Myers, the firm defending former Enron CEO Jeffrey Skilling on appeal from his criminal conviction, have filed an appellate brief with the Fifth Circuit that is 239 pages long.

I will concede that the Fifth Circuit requires a 14-point font for briefs but nevertheless, at 58,922 words, this brief is over four times the length allowed by the rule, which limit briefs to 14,000 words unless you get permission from the court. The normal limit would permit a brief of about 50 pages (again, depending on the font), but I just can't imagine a case where the issues would justify even 50 pages much less 239.

A brief that long is simply not very effective as a persuasive tool although a brief of such length will be more effective in serving to cover the firm's hindquarters and/or in justifying a truly obscene bill for appellate services.

This brief covers five "main" points and to do so, it contains: a 12-page introduction; over 44 pages of facts; a two-page summary of argument; a 175-page argument that doesn't begin until page 61; and finally, a two-sentence conclusion, for anyone who has not succumbed from natural causes by the time they get there.

The accompanying Motion For Permission to File a Brief Exceeding the Word Limit Set Forth in Federal Rule of Appellate Procedure 32(a)(7)(B), is itself eleven pages long. In that motion, O'Melveny says that the case of their client is sufficiently "extraordinary and compelling" that the extra words are justified. The brief "will raise a large number" [five as it turns out] of "serious legal issues" (I guess they think that most briefs don't raise these), each of which "could easily justify a full-length brief on [its] own." Finally, the authors note that this is not the longest brief (an apparently clueless use of an oxymoron if there ever was one) ever written, pointing out that in U.S. v. Brown, the government used 69,370 words in its brief, and in U.S. v. Martha Stewart it used 56,078 words (as if the lengths of those briefs somehow made them more persuasive). Therefore the only reasonable conclusion the court is expected to draw is that 58,922 words is really quite reasonable.

I think I will wait for the movie.