Varda, Inc. v. Insurance Co. of North America
45 F.3d 634, 641 (2nd cir.1995)
There is a fifty-page limit on briefs in the Court of Appeals. Fed.R.App.P. 28(g). Under Local Rule 32, "footnotes may be single-spaced," while text must be double-spaced. Varda's fifty-page brief is pocked with fifty-eight footnotes, many over a page long and containing crucial parts of Varda's arguments. Indeed, approximately 75% of Varda's statement of facts and argument appear in footnotes. If Varda had presented its facts and argument in canonical form, i.e., in the text, its brief would have been roughly seventy pages. Varda thus brazenly used "textual footnotes to evade page limits." > Production & Maintenance Employees' Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1407 (7th Cir.1992).
Although the denial of costs may sting, Varda's counsel are fortunate that they practice law in the late twentieth century. Four hundred years ago, an English court imprisoned the pleader of a 120-page replication. Mylward v. Weldon, (1596), first reported in 1 G. Spence, Equitable Jurisdiction of the Court of Chancery 375 n.h (Philadelphia, Lea & Blanchard 1846). In addition, it ordered a warden to:
cut a hole in the midst of the same engrossed Replication ... and put the said [pleader's] head through the same hole, and so let the same Replication hang about his shoulder with the written side outward.
Id. The warden was then to:
lead the said [pleader] bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and ... show him at the Bar of every of the three Courts within the Hall.
Id.
Varda's brief stirs nostalgia for the rigors of the common law.