Getting in the Last Word: the Impropriety of "letter Briefs" in State and Federal Courts (fn*)
| Pages | 294 |
| Publication year | 2021 |
68 CBJ 294. Getting in the Last Word: The Impropriety of "Letter Briefs" in State and Federal Courts (fn*)
Beginning in law school, would-be lawyers are taught that time is their stock-in-trade, that words are their tools, and that the legal brief is the conventional, if not the only, method by which their written analysis and arguments are to be placed before the court. This article discusses a relatively new phenomenon known as the "letter brief" and explores its relationship to the rules and expectations governing communications with the court. The article concludes that, while such nontraditional "briefs" have achieved some acceptance among lawyers and in the courts, the potential for their abuse or misuse is sufficiently great that they should be discouraged by the bench and the bar.
The term "letter brief" is perhaps a bit too formal. In reality, a "letter brief" is simply a letter to a judge which sets forth the assertions, arguments and requests that an attorney is making on behalf of a client. It is transmitted directly to the judge's chambers, usually both unsolicited and unexpected. Often it bears a complete case caption. Sometimes, it contains footnotes and case citations. Such a letter is generally transmitted by ordinary mail unless, of course, its author deems its contents sufficiently critical that expedited delivery is required, which is often the case. Typically, the last page of the letter bears a notation intended to reflect that a copy has been sent to opposing counsel, for example "cc: Attorney John Doe."
"Letter briefs" frequently make their appearance after both sides have filed their competing, traditional supporting and opposing memoranda, replies, sur-replies and rebuttal briefs. Sometimes, there is a directly proportional relationship between
the number of letter briefs dispatched in a case and the length of time that the court has held sub judice the motion or other matter to which the letters relate. This is probably because the longer a motion or matter is under advisement, the greater the likelihood that some other tribunal will render a decision that arguably should be brought to the judge's attention. Unsurprisingly, the need to apprise the court of "new law" is an oft-given justification for bypassing traditional avenues of communication and, instead, transmitting information directly to the judge by letter.
In well-financed litigation - especially cases involving large metropolitan law firms - a single "letter brief" can spawn a bevy of opposition, reply, rebuttal, sur-reply, and sur-rebuttal letters to the judge. Occasionally, these "letter briefs" are acerbic, if not downright caustic, containing assertions that most attorneys would never express in a formal memorandum. Rarely do they supply information that could not just as easily be set forth in a traditional pleading. Now and then one even finds counsel using letters as an informal way of making a discovery request.
Though a litigant's desire to "get in the last word" is easily understandable, it is obviously not the better practice to use letters in place of formal document requests, or as a substitute for filing a properly prepared, correctly certified memorandum with the Clerk of the Court as is contemplated by Rules 5, 7, and 10 of the Federal Rules of Civil Procedure. Though the widespread practice of sending letters directly to the judge undoubtedly is based on a desire to get information before the court speedily, expediency is not an adequate justification for mailing a letter rather than filing a traditional legal memorandum.
Documents that have been filed with the Clerk of the Court but which await distribution to a judge are often said to be "in the pipeline." It is here that documents are filestamped, docketed, and made ready for delivery to a judge's chambers. Because of clerical work that must be performed, there may be a delay between the filing of a document and its actual receipt in chambers. Occasionally, the desire to avoid this delay will be cited as the reason for counsel's dispatching letters directly to
chambers. In reality, however, counsel could accomplish this very same objective by hand-delivering or mailing the judge a copy of formal documents which have been filed, while simultaneously serving a copy in the same manner on all parties as contemplated by the Federal Rules. (fn1)
The Federal Rules plainly contemplate that documents which are intended to become a part of the record will ordinarily be filed with the Clerk of the Court, who then dockets and distributes them. (fn2) While most of the Federal Rules are cast in terms of service of pleadings, (fn3) the importance of the filing requirements can not be overstated. (fn4) As the Second Circuit observed, "[ilt is not the type of paper submitted but rather the fact of filing which determines whether a particular item will be included in the record." (fn5) The court also noted that filing at the trial court level with a view to 'making a record' is crucial because, absent extraordinary circumstances, federal appellate courts will not consider rulings or evidence which are not part of the trial record." (fn6) While a judge may permit the filing of papers directly with chambers, the rules do not provide for the direct filing of unsolicited papers, nor do the rules mandate that such papers be docketed or even retained by their addressee.
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Though one might argue that a judge's receipt of a letter brief in the mail constitutes an "implied grant of permission" to file the document directly with the judge, the argument turns on the unrealistic premise that judges have control of the content of mail they receive. This argument is also dubious in that it
would permit...
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