Monday, September 25, 2006

Motion to Strike a Brief

Custom Vehicles, Inc. v. Forest River, Inc, No. 06-2009 (September 25, 2006): This is a civil case, and it raises an issue that seldom arises for the criminal practitioner. Yet the in-chambers opinion of Judge Easterbrook contains some information of interest to all practitioners.

Claiming that various statements in the appellee’s brief were unsupported by the record, the appellant filed a motion to strike those portions of the appellee’s brief. Judge Easterbrook denied the motion. As background, the judge observed that in any given week one judge decides all the motions for that week. The judge’s involvement in the motion has no relationship to his or her being assigned to the case on the merits. As a consequence, any motion that calls for the motions judge to rule on what should or should not be in the brief can have the result of taking up the time of four, not three, judges, which is not an efficient use of judicial resources.

Judge Easterbrook noted that the rules have no provision for striking a brief or portions of a brief. If a party believes that an adversary has played fast and loose, the party should say so in its responsive brief. If there is no scheduled responsive brief, the aggrieved party can ask to file a supplemental brief to correct the error. But there is no place for a motion that essentially asks the Court to edit the opponent’s brief.

Judge Easterbrook did allow that motions to strike may sometimes have a place, giving the hypothetical example of a brief that discussed a trade secret that was under court seal. He also referred to the Court’s power to strike briefs that violate the Court’s order to avoid duplicative briefs by multiple parties.

Finally, he revealed that in the past, when denying such motions, he has also entered an order deducting from the word limit for the movant’s brief the number of words contained in the motion to strike. With this opinion, he gave notice that he will be deducting double the number of words from the responsive brief to be filed by the movant. This practice will apply not only to motions to strike, but also to "any other equivalently absurd, time-wasting motion."

Obviously, this opinion is not binding on any other member of the Court, but it provides some key insights into the process. Moreover, since it is unlikely that anyone will ever know what week is Judge Easterbrook's week to handle motions, it would be risky to file one of these motions.