BADCC (Beware of acronyms in the D.C. Circuit)

June 6

The E. Barrett Prettyman federal courthouse in Washington, D.C. (AP Photo/Stephen J. Boitano)

In March, a panel of the U.S. Court of Appeals for the D.C. Circuit ordered parties in a pending case to resubmit their briefs without using “uncommon acronyms.”  Apparently the judges did not take kindly to the parties’ failure to confirm with Circuit rules which counsel against the use of all but the most common acronyms.

At the time, it was speculated that Judge Lawrence Silberman was the driving force behind this order.  This speculation may have been well-founded.  On Friday morning in another case (Delaware Riverkeeper Network v. FERC) Judge Silberman has, a separate concurring opinion takes the prevailing side’s attorneys to task for the overuse of acronyms in their briefs.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.

The use of obscure acronyms, sometimes those made up for a particular case, is an aggravating development of the last twenty years. Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means. Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.

We have recently been rejecting briefs that do not adhere to our instructions, and counsel should be warned that if a brief is rejected and has to be rewritten, they will not be able to alter the word limits.

I’m sure it’s some consolation that the petitioners still won their case — and that the attorneys were not called out by name.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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Jonathan H. Adler · June 6