A lawsuit ordinarily starts when someone files a document with a court. The most common version of this document is called a “complaint.” The person sued then has a certain amount of time to file a responding document, typically referred to as an “answer.” Both documents are supposed to be pretty simple — perhaps a dozen pages summarizing each side’s legal position, or a little more if the facts are complex.
In the federal courts, a complaint isn’t even supposed to list more than a few bare facts about a case. It’s normally just a string of legal conclusions, with a short request at the end called the “prayer” asking the court to award money or to issue a court order. These initial papers are also referred to as “pleadings” — harking back to the time when someone approached a court on something akin to bended knee.
Of course, knowing what should go into these documents is one reason lawyers get paid so much money. And an equally important skill is knowing what not to put in. That perhaps explains the reaction of John R. Brown, Chief Judge of the federal Fifth Circuit Court of Appeals to a 1979 lawsuit between Edwin F. Gordon and E.G. Green. Brown was one of those judges who didn’t mind a bit of creative writing in his opinions, either — and it shows here.
The case that reached the court of appeal was actually five (count ’em, five) consolidated lawsuits from a federal trial court in southern Florida. Gordon was a real estate investor who thought he had been defrauded by Green (the case came from Florida, after all) and so, Gordon took Green to court.
In the first section of Brown’s opinion, entitled “The Pleadings: Gobbledygook,” he explained that Gordon’s initial complaint filed was 165 pages long and had 413 pages of attachments. (Think of a standard 500-sheet ream of paper — and then add 78 more pages for good measure.)
Thanks to various amendments, the complaint grew from there. Or, as Brown put it in the second section of his opinion, entitled “Let Thy Speech be Short, Comprehending Much in Few Words” (quoting from Ecclesiasticus 32:8), “the various complaints, amendments, amended amendments, amendments to amended amendments, and other related papers are anything but short, totaling over 4,000 pages, occupying 18 volumes, and requiring a hand truck or cart to move.” And, keep in mind, this was all supposed to be just a single document submitted to the court.
This was not just an exercise in page-counting, either, because the Federal Rules of Civil Procedure, which govern how all federal lawsuits must proceed, stated that a pleading should contain “a short and plain statement of the claim” showing what the plaintiff wanted from the court. Another part of the same rule required each statement in the pleading to be “simple, concise, and direct.”
As Brown said, however, “nothing was further from the minds of [Gordon] and his lawyer” than the clear directions of that rule. Nor, he said, were the documents “plain,” either. A randomly-selected single-spaced paragraph covered the entire length of a legal page — and it was just one sentence!
Unlike the plucky federal trial judge, who had “struggled and strained to decipher plaintiff’s mountain of papers” until he eventually decided to dismiss the case, Brown took a much simpler approach. Because this “mountain of papers” was, well, a “mountain of papers,” he felt quite justified saying there was no reason for his court even to try to make sense of them.
Brown acknowledged the many court decisions saying that pleadings should be “liberally construed.” But Gordon “asks not that we adopt a liberal approach, but that we stand liberality on its head by accepting 4,000 pages of chaotic legal jargon in lieu of a short and plain statement.” Brown said this was what the federal trial judge should have done: just weighed the papers and shouted “Next!”
In summing up, Brown noted that “Counsel as scrivener [i.e., Gordon’s lawyer] would have been fair game for the discipline meted out . . . in 1596.” Brown recounted how in that year, an English judge decided to make an example of a particularly prolix document filed in his court. The chancellor first ordered a hole cut through the center of the document — all 120 pages of it. Then he ordered the person who wrote it to have his head stuffed through the hole, and had the unfortunate fellow led around to be exhibited to all those attending court.
It’s an approach many judges would undoubtedly like to try with certain lawyers today.
Frank Zotter, Jr. is a Ukiah attorney.
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