That Bloated Feeling

By Howard Posner

Two sentences. Five pages. If this isn't seen as insanity - and it isn't - there's something really wrong.

What's got me riled is something opposing counsel sent me: a routine stipulation extending time to file an opening appeal brief. It should take about 35 words to do this: "The parties stipulate that appellants Artaxerxes Industries, Inc. and Thomas Arne have an additional 30 days, until April 20, 2009, to file their opening brief. Counsel have mailed copies of this stipulation to their clients." (Appellate rules require a stipulation extending a filing deadline to certify, or note in the proof of service, that the client got a copy.)

But this document uses five pages to accomplish its simple end, which rankles both the writer and the environmentalist in me. A five-page, two- sentence stipulation should be the punch line of a lawyer joke, but it's no aberration. It's just another example of the paper bloat that afflicts our profession. We have a brevity phobia, a fear of producing documents that aren't big enough. We protest that size doesn't matter, but we don't believe it. Even as we painstakingly dig for substance through bogs of useless words and pages, we make other lawyers, judges, and hapless clients do the same.

How do two sentences take up enough space for six or seven Gettysburg Addresses? By using lots of the usual bloatogenic agents, which is what makes this stipulation an interesting case study. For starters, as you'd expect, the sentences are morbidly obese, using three times the necessary words. Also, because there's a limit to how much you can pad a sentence, you'd expect something else to occupy most of the space. Thus, the entire first page is taken up by the standard court of appeal caption page. The second page is, for some inscrutable reason, also a caption page, this one in trial-court format: parties on the left, document title on the right, stack of parentheses dividing them (wouldn't you like to meet the sociopath who dreamed that up?). Toward the bottom of the page is (eureka!) the stipulation:

"IT IS HEREBY STIPULATED by and between the parties through their respective counsel, pursuant to rule 8.212(b)(1) of the California Rules of Court, that defendants, appellants, and cross-respondents, Artaxerxes Industries, Inc. and Thomas Arne, may have an additional 30 days up to and including April 20, 2009, within which to file their appellants' opening brief.

"Pursuant to rule 8.60(f)(1) of the California Rules of Court, counsel for the parties hereby certify that they have mailed copies of this stipulation to their respective clients. SO STIPULATED."

Six of the 85 words shout in capital letters that the stipulation is a stipulation - as if the court, despite the two captions saying "stipulation," wouldn't otherwise know that it was reading one. Two of the words are "hereby," as if the court wouldn't know that the document was the means of stipulation. Most of the rest tells the court things it already knows. Don't get me started about the misuses of "respective."

Because the caption takes up most of the second page, the first sentence ends three lines from the bottom, and is therefore followed by three of those crosshatchy-slashy whatevers that lawyers use to say, "I'm showing there's nothing else on the page by putting something else on the page." The second sentence and signature blocks are on the third page.

The fourth and fifth pages contain a proof of service that would easily fit on one page if it weren't full of junk. At the top - don't ask me why - is "State of California," with "County of Los Angeles" below it, and "ss" to the right and between them. That "ss" sign, increasingly rare these days, has no function other than perhaps warding off evil spirits. Ask five lawyers what it means, and unless they all say "nothing" or "I don't know," you'll get at least three different responses.

Further down the page, someone declares that she served the stipulation "by placing a true copy thereof in sealed envelope(s) addressed on [sic] the attached mailing list. I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit." Translation: "All I did was stick it in an envelope, so I can't tell you whether it was actually mailed, but I can offer a pointless legal conclusion about postmarks, as if you cared."

The depressing thing is that if I had drafted this stipulation, it likely still would have taken three pages (caption page, stip and signature page, and proof of service - the minimum that I'd be confident wouldn't get bounced by a clerk who's having a bad day), which beats five, but is still a lot of waste. But why should I be immune from the bloating epidemic? As I sit at my desk, within arm's reach are:

- Pleadings that begin with useless ceremonial announcements ("Comes now the plaintiff ..."). Even lawyers I work with (I sometimes ghostwrite for litigators) who tell me they read this column will hand me drafts with this sort of nonsense in it, presumably to disabuse me of any notion that I have any influence.

- A certification of the number of words in a brief (required by appellate rules to prevent overly long briefs) that fills an entire page instead of two lines. (The attorney apparently didn't appreciate the irony.)

- Almost any discovery document. I'm looking at a four-line objection to an interrogatory to the effect that asking a plaintiff for the facts supporting an allegation in his complaint violates the rule that an interrogatory be self-contained, because he must refer to his own complaint to answer it. It's silly: Everyone knows a plaintiff can be asked for the facts underlying his allegations, and this plaintiff actually answers each interrogatory anyway. But he still repeats the objection more than 100 times - it occupies the equivalent of 16 pages all by itself!

You probably have your own favorite instances of bloating sickness. Indeed, if experience is any guide, you'll send me some. Well, as a wise man once said, "Bring 'em on." I might award prizes for the best examples in a future column.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.

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