Update (July 9, 2018): “Why say something in three pages when you can say it in 30 pages?” is one of our oft-repeated go-to jokes about the work product of many lawyers (and some judges).
We heap derision on our fellow lawyers: they were vaccinated with a phonograph needle (which only old people now understand)…they own stock in paper companies, etc., etc.
We once sat before a federal judge who stacked all of the submissions on cross-motions for summary judgment in a case on his desk in his chambers and said to trial counsel (with apparent sincerity): “Why should I take all of the time to read all of this? It would be faster just to have a trial.”
He also said, “This case should settle today and it should settle for $XXX,XXXX.00.”
Lo and behold, it did settle for that amount (the next day).
The point: your client faces a serious challenge if you cannot say quickly and clearly why your client should win on summary judgment. If you don’t take our word for it, consider the sage wisdom of Minnesota preeminent trial lawyer Richard Ostlund quoting then retired Minnesota Supreme Court Chief Justice Bob Sheran.
In the case described below in which Mr. Ostlund represents Plaintiff Upsher-Smith Laboratories, Upsher-Smith got tricked and lost about $37 million in an internet scam. Some foreign evil-doer(s) posed as the company’s CEO and sent orders to a now former Upsher-Smith employee to wire money for bogus foreign exchange trades. Upsher-Smith’s bank, Defendant Fifth Third, received the wiring instructions and acted upon them. The issue is whether Fifth Third should be liable for Upsher-Smith’s $37 million loss.
Playing the devil’s advocate on Fifth Third’s request for more pages to make its summary judgment case, word count limits are arbitrary, are they not? And few of us know the details of international wiring or banking processes, which presumably have to be explained to the Court. Further, Minnesota Litigator (and most of our readers) don’t have detailed knowledge of the claims in the Upsher-Smith case. We don’t know the number of counts, the number and complexities of state law, federal law, the interaction with multiple layers of banking laws, regulations, regulators, etc. etc Fifth Third must explain all of this to the Court.
And further, the case does involve a lot of money. Shouldn’t Fifth Third be allowed to make its best arguments and use its best judgment on the length of its summary judgment brief? Let’s not prejudge the merits of Fifth Third’s request for 10,500 more words in addition to the 12,000 allowed by our federal district court’s local rule.
Nevertheless, in the end, remember: “de maximis non curat lex.” This is an expression we have just coined for which we propose this translation: “The law does not care for wind-bags.” And one more neologism to express the same warning: “Caveat loquax.” (“Windbag Beware.”)