1. Think thrice before filing a motion to strike, then sleep on it, and then wait two days before finally sticking the motion in a drawer. Yes, the Hutz brief lacks tables. Yes, it violates most of the Federal Rules of Appellate Procedure regarding form and content. And, yes, it grossly distorts the facts and the law. It probably should be stricken.
But that does not mean that you should give into temptation and clog the court’s docket with a motion to strike. Some attorneys appear inclined toward such motions, but courts generally dislike them, particularly motions to strike a portion of an opponent’s argument. The Seventh Circuit in particular has gone out of its way to remind attorneys that such motions are not expressly authorized by the Federal Rules of Appellate Procedure and do “nothing but squander” the court’s time and “disserve the interest of judicial economy.” Custom Vehicle, Inc. v. Forest River, Inc., 464 F.3d 725 (7th Cir. 2006) (Easterbrook, J., in chambers); Redwood v. Dobson, 476 F.3d 462, 470–71 (7th Cir. 2007).
The best vehicle for responding to a wildly inaccurate factual statement, a distortion of precedent, or an excessive word count is a brief, not a motion to strike. Apart from the obvious reason that it is better to rebut the offending portions of the Hutz brief at the same time and place as your affirmative argument, motions to strike may not be reviewed by the same appellate judge or judges that ultimately will decide the case.
Courts, of course, do grant such motions on occasion, such as a where a party includes extra-record material in the appendix or where a party attempts to insert a new issue in a reply brief. But even in those circumstances, will a motion to strike truly advance the ball? If a party includes new evidence in the appendix, just point out that fact in a footnote in the response or the reply brief. If a party makes an argument for the first time in a reply brief, seek leave to file a supplemental brief that will allow you not only to highlight the impropriety of misusing reply briefs, but also to debunk the new argument. No matter how inept the Hutz brief may be, there are few occasions in which a motion to strike makes sense.
2. Assume your brief will be read first. It is impossible to predict the order in which judges and clerks will review the case materials, but when a Hutz brief is in play, it is worthwhile to assume that your brief will be read first (even if that is not what ends up happening). Imagine a judge who, after reading the decision under review, opens the appellant’s brief and quickly realizes that he or she is reading a Hutz brief. Perhaps the judge finishes the brief, not fully understanding what exactly is going on in the case. Or, perhaps the judge puts down the Hutz brief and opens your offering, hoping for enlightenment.
Either way, your brief should function as a self-contained unit that provides the foundation that the judge needs to understand the case and, ultimately, your position. Many attorneys strive for this ideal in all circumstances because they want to present the issue, the facts, and the law in the light that best suits their client. But, when responding to a quality brief that clearly describes the issues at stake and the context in which they arise, the focus is more on rebutting the opposing arguments than rehashing the background.
In a Hutz brief, that background is often incomplete or missing, and the response brief performs a service for client and court alike by filling in the blanks. The process of clearing the clutter begins with the statement of issues/questions presented. Hutz briefs sometimes dive into the facts without grounding those facts in a legal context. Thus, the Hutz brief may state the question presented, without more, as “Whether the parties entered into the contract on July 10” or “Whether Mr. Smith traveled to Wisconsin to meet with Mr. Jones regarding the contract.” The relevance of a factual dispute regarding a contract date becomes much clearer when the court understands that the case is about a statute of limitations. Similarly, a court is more likely to understand why details about the negotiations that led to that contract are important if the court sees from the outset that personal jurisdiction is central to the appeal.
In general, the less clear the Hutz brief is about the legal questions presented, the greater the necessity that you include a brief paragraph describing the legal context before stating the issue(s) presented. The rest of the brief should follow suit: jurisdictional statements, descriptions of the proceedings, and factual recitations should be as robust as their Hutzian counterparts are lacking.
Providing a full picture of the case also fulfills your obligation as an officer of the court. As they often remind us, judges shoulder hefty loads. Opaque and confusing Hutz briefs do not aid judges in their task of resolving the cases before them. A brief that cuts through the murk and reorients the judges to the legal issues at stake and the facts that determine their outcome is valuable because it accelerates the decision-making process and provides the court with a clear vision of how the case should be decided.
3. Lay out your argument before tackling the points addressed in the Hutz brief. As David Mamet would probably say (if he penned briefs instead of scripts), the best response briefs are responsive. We have it drilled into us (appropriately) that an effective response brief should not pretend that the other side’s brief does not exist, but rather should dissect the flaws in the other side’s offering. In the normal run of things, this strategy makes sense; after putting down the first brief, the judges will have a good sense of the case and will look to your brief for the best explanation of why those arguments are wrong.
The Hutz brief, however, is a different beast. After reading the Hutz brief, the judges may not have a good sense at all of the facts, the context, or the legal foundation upon which the particular case rests. In this instance, it may be better to eschew the normal advice and present your argument in its entirety before circling back to what the Hutz brief has to say.
As an illustration, suppose the primary issue in the case is whether a federal district court abused its discretion by entering a default against the appellant as a sanction for failing to appear for her deposition. The Hutz brief, meanwhile, focuses on outlandish and misplaced arguments about subject-matter jurisdiction and supposed judicial bias. Roman numeral I of your response should walk through your primary argument—that Federal Rule of Civil Procedure 37 empowers district courts to default litigants for discovery misconduct, that the choice of sanction is reserved to the discretion of the district court, and that the district court was justified in choosing default in this instance because the appellant never appeared for her deposition despite being warned that failure to attend could result in default. Roman numeral II can then explain why the court in fact had subject-matter jurisdiction and why the district court’s dismay at the appellant’s flouting of the discovery rules is not the same thing as bias.
By presenting your affirmative argument first, you can explain to the court why you should win under the law without distraction from arguments that, quite often in this context, are far afield from what the appeal is truly about. Once that task is accomplished, the response brief can move on to debunking the theories presented in the Hutz brief, although naturally it may not be possible to completely compartmentalize the arguments in all situations.
4. Try your best to restate and then knock down the other side’s arguments. Trying to make sense of the arguments in the Hutz brief can be a difficult task. And therein lies the dilemma: should you ignore poorly made arguments in the hope that the court rejects them because of their sheer incomprehensibility, or should you do your best to offer a rejoinder even though doing so implicitly suggests that the argument is credible enough to merit a response?
The latter is almost always the best choice. Nearly all arguments, no matter how bad, deserve an answer of some sort; after all, call-and-response is the whole premise of the brief-writing enterprise. (Avoid the “this argument deserves no response” formulation. It makes no sense—if the argument truly did not deserve a response, you would just ignore it rather than making a point of writing that it does not deserve a response.) But far more important is the risk that the court takes interest in the argument no matter how inartfully the Hutz brief has framed it. Those responding to Hutz briefs should be concerned about arguments made of straw that a court turns into gold. Your case would not be the first time a court has granted a victory to a poorly represented litigant who unintentionally and unintelligibly made an argument that turned out to be a winner. Courts take seriously their responsibility to ensure a fair process for all litigants, particularly those appearing pro se, even when their briefing failures create more work for the court. Put simply, do not assume that a court will discard an opponent’s argument merely because it is poorly made.
Instead, mitigate the risk by engaging in the debate. Restate the argument—or, at the very least, what you understand the argument to be—and explain why it is incorrect. If the Hutz brief contends that the judge ruled against the litigant because he or she had a foreign accent, it is fair to construe this as an argument regarding bias, and to respond by pointing out such an allegation is insufficient to show bias without much more. If the Hutz brief contends that the judge erred by admitting the litigant’s damning statements into evidence, it is fair to construe this as an argument based on hearsay or relevance, and to respond that the statements were made by a party-opponent and are not unduly prejudicial. And so on.
5. Resist the lure of ridicule. Hutz briefs are huge targets. They are filled with errors and misstatements. All those acerbic witticisms that you have devised would go to perfect use. It is just too easy.
Resist the temptation. If the Back to the Future franchise taught us anything, it is that no one likes a bully and a bully never wins. The judges who read your brief will read thousands of other briefs during the year. They will instantly recognize that the Hutz brief is a mess. Your ridicule can only invoke their sympathy. So, put down the poison pen, minimize the adverbs (a good lesson for all briefs), and save the snark for the comments section of your favorite blog. As Napoleon supposedly said, “‘part of brilliance is winning and part is leaving your opponent alone when he’s losing.”
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Victory may seem assured when responding to a Hutz brief, with all its poor argument and disjointed prose, but attention to the unique circumstances presented by such a brief can avoid the real potential of snatching defeat from the jaws of victory.
Keywords: litigation, appellate practice, brief writing, Lionel Hutz
Jeff Berger works in the Office of the General Counsel of the Securities and Exchange Commission.