If your practice includes appellate work in the Seventh Circuit, DO NOT FILE a Motion to Strike portions of the opposing party's brief. In a short, published opinion, Judge Easterbrook of the Seventh Circuit Court of Appeals took issue with a motion to strike portions of the appellee's brief filed by the appellant in a trademark suit. The appellant, in essence, was requesting the Court to redact portions of the appellee's brief that it deemed contained unsupported assertions or errors. Judge Easterbrook appropriately pointed out that the proper procedure for such claim of errors is by way of a reply brief, "not to ask a judge to serve as editor."
Apparently, although motions to strike portions of briefs are not authorized by the appellate rules (and are not granted by the judges), they are filed all the time. Thus, Judge Easterbrook held as follows:
The court has ample power to change the length of a brief from the presumptive maximum. . . I have decided to use that power. My practice has not led to a discernible reduction in the number of these motions, however, perhaps because I have not explained it in a published opinion. Now notice has been given--and I have decided to raise the stakes and deduct from the brief double the number of words in a motion to edit an opponent's brief or any other equivalently absurd, time-wasting motion.
Since the appellant's motion to strike contained approximately 1,200 words, the maximum length of the reply brief was shortened from 7,000 words to 4,600 words.
Custom Vehicles, Inc. v. Forest River, Inc., 2006 WL 2714690 (7th Cir., Sept. 25, 2006).
