TOO LATE AND TOO LONG: OCEANS APART BUT TWO JUDGES HAVE THE SAME VIEW ON LAWYERS’ LATE & LENGTHY SUBMISSIONS

Some parts of the legal profession do not have a reputation for concision. It is interesting to see similar observations coming from two judges, in two very different jurisdictions, on the same day.

“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.”

FROM OUR AMERICAN COUSINS

In Garcia Cuevas -v- Hartley (United States Court of Appeals for the Ninth Circuit August 4, 2016) the court was considering an application to file “an Oversized Replacement Answering Brief”, it was allowed by the majority but Judge Kozinski had a different view

“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.
For my 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 of her oversized brief, so long as it is filed no later than 7 days from the date of this order”

AND YESTERDAY IN LONDON…

Mr Justice Irwin was considering the submissions in Kontic -v- The Ministry of Defence [2016] EWHC 2034 (QB) (the submissions filed were counsel were appropriate, however another set of submissions were simply not read at all).

“Late Submissions
  1. At the close of the hearing, leading counsel for the Claimants indicated that she sought to supplement the written submissions on the evidence. A Note was sent on 27 May 2016. I have read that, and taken it into account, alongside a brief response from the Defendant, in its letter of 7 June.
  2. I have also noted the minor correction to the Defendant’s closing submissions, contained in the letter of 7 June.
  3. After the hearing, the Claimants’ solicitors filed extensive further submissions entitled “Supplemental Submissions on Attribution and Jurisdiction under the Law of the European Union”, with enclosures. It appears this document is a revised version of submissions which were put forward by the solicitors during the hearing, and then withdrawn. Counsel for the Claimants stated at the time they had no instructions in relation to these submissions; they did not bear the signature of counsel instructed. In their letter of 7 June, the Defendant objects to these submissions being received: they are late, not filed with permission, and are said not to relate to the matters set down for determination at preliminary issue by Master Leslie. In the light of the irregular way in which these submissions have been produced, and the Defendant’s objections, I have not read them. To do so would be to encourage an incoherent process.”

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