Tuesday, March 10, 2015

Skeletons: For Halloween, Not Briefs

Leonardo Skeleton 1511
Leonardo da Vinci
Skeleton briefs provide only an outline—rather than a fully fleshed-out argument—of the facts or law. Skeleton briefs can be tempting. You're buried in work, your filing is due tomorrow, and you have no time to put an adequate brief together. So, you think, "I'll file this skeleton brief now then beef up and hone my understanding of the issues and law prior to oral argument. This is the perfect solution." 

Skeleton briefs, however, cause problems for several reasons.

First, they don’t apprise the Court of the full background of the case or the party’s complete arguments. Second, they don’t put the opposing party on notice. Third, they usually result in more work for the parties and the Court and lengthen the time needed for the Court to issue an order.

Here’s why. Some trial courts and most (if not all) appellate courts review the parties’ briefs before hearing oral argument and, at least mentally, form a list of questions to ask at oral argument. Incomplete or skeleton briefs often leave a court confused—and the more confused the court is, the more time the parties will have to spend at oral argument clearing up that confusion. Courts become easily frustrated with parties who could have—but chose not to—adequately provide the facts or law in their briefs.

Skeleton briefs also don’t adequately put the opposing party on notice of the facts alleged or legal arguments. What happens at oral argument when the opposing party finds itself faced with law or facts not contained in the original brief? The opposing party complains: "Judge, this is the first time I’ve heard this argument. I’m not adequately prepared to address it—I haven’t done any research on this issue because I didn’t know it would be raised. "And what do most judges do in that situation? Scold the party that didn’t adequately brief the issue and allow the opposing party to respond via a supplemental brief.
But allowing supplemental briefing is frustrating to the court. Doing so creates more work for the court and the opposing party—work that shouldn't have been necessary—and delays the court’s ability to issue a ruling. Now, the court must wait—sometimes several weeks or longer—for the parties to file the supplemental brief(s) and then must review the brief(s) and research any supplemental authority provided. By that time, the issues are no longer fresh in the court’s mind (as they were at oral argument), which can lead to even further delay.  

Some courts aren’t that generous, though, and won’t even consider inadequately brief arguments. For example, Rule 28 of the Federal Rules of Appellate Procedure requires that an appellant’s opening brief outline its contentions and the reasons for them and cite authority in support of those contentions. In some jurisdictions, courts have determined that under Rule 28 and similar state court rules, arguments inadequately presented in an opening brief are waived. Cacioppo v. Town of Vail, Colo., 528 Fed. App’x 929, 934 (10th Cir. 2013); Nowacki v. Nowacki, 20 A.3d 702, 706 (Conn. App. Ct. 2011); Slagle v. Prickett, 345 S.W.3d 693, 700 (Tex. App. 2011).

The moral? Skeleton briefs are a big pain for courts, slow down litigation, and can get attorneys in trouble. No bones about it—you should ignore the temptation to file a skeleton brief!

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