Business and Legal Insights

Several significant amendments to the Federal Rules of Appellate Procedure will take effect December 1, 2016. The most controversial change has been the reduction in the type-volume limitations. The amendments reduce the type-volume limitations on principal briefs from 14,000 words to 13,000 words. In addition, the amendments shorten the reply brief type-volume limitation from 7,000 words to 6,500 words.

The word-volume limit of other filings has been lowered as well. Under the existing rules, principal briefs in cross-appeals are subject to a 16,500 word type-volume limit, but the amendments will shorten that to 15,300 words. And except by the court’s permission, amicus briefs may be no more than one-half the maximum length of a party’s principal briefs. Even if the court grants a party permission to file a longer brief, that permission does not affect the length of an amicus brief.

The 14,000 and 7,000 word-volume limits, which have been in effect for fifteen years, were adopted when the Rules converted from page limits requirements to word limit requirements. Principal briefs that exceed 30 pages in length, and reply briefs that exceed 15 pages in length must comply with the type-volume limitations. Fed. R. App. P. 32(a)(7)(B) (Type-Volume Limitation).

The reduction of the size of these filings is consistent with observations made by many judges, who are the consumers of legal briefs, while many producers, the lawyers who write those briefs, have expressed dismay at the changes. For example, some judges have expressed the opinion that “briefs tend to be too long.”  That was the comment on the rule amendments lodged by Judge Silberman of the D.C. Circuit, who also noted that “[a]ll the judges on the D.C. Circuit agree with me – and so do judges I have spoken to on other circuits. Indeed, the top-grade appellate specialists I have spoken to in Washington also agree.” Judge Silberman suggested that the reductions would be a positive development because:

The problem is that many lawyers tend to write briefs to match the page limits, whether or not that is actually justified. An over-long brief, either because of excessive discussions of facts and background material which obscure the legal issues, or because of the addition of quite marginal arguments, is not effective – it is even tiresome and can cause a judge to insufficiently appreciate the core legal arguments.

The Council of Appellate Lawyers of the Appellate Judges Conference of the American Bar Association’s Judicial Division submitted a comment on the proposed amendments that opposed the reduction of type-volume limitations from current levels. They argued that the current system was working well. They contended that the rule change will penalize knowledgeable lawyers who need adequate space to brief appeals that present complex facts or issues as well as appeals following lengthy trials and appeals involving multiple parties. They stated:

While everyone can appreciate better focused and less repetitive briefs, the word count rule is not an effective enforcement mechanism to achieve those ends. An inexperienced or unskilled brief writer will commit the same mistakes in 12,500 words as in 14,000.

It is unclear how impactful the change will be on the ordinary federal appeal. A study by the Clerk of the Eighth Circuit Court of Appeals conducted of the principal briefs filed in the 2008 calendar year showed that 82% of the principal briefs filed in 2008 under FRAP 32(a)(7)(B)(i) were under 12,500 words in length.

Opposition from practitioners did have an effect on the final version of the amendments. The amendments initially proposed a 12,500 word type-volume limitation on principal briefs. The final version raised the proposed type-volume limitation on principal briefs to 13,000 words.

The Council of Appellate Lawyers not only commented on the proposed amendments, they also made some suggestions for future study by the Advisory Committee:

The Advisory Committee might also consider eliminating the requirement of a summary of argument or otherwise altering the structure of briefs to try to improve their quality and lessen the occurrence of repetition. Another step that would aid readability of appellate briefs would be to adopt modern typography principles as set forth in Matthew Butterick’s Typography for Lawyers (2010). Briefs would be easier to read—and shorter—if the font size and leading (the space between lines) were reduced. Briefs would also be more reader-friendly if margins were increased. The Council suggests that these and other educational and formatting issues be explored.

In this Law Practice Today article, I further discuss ideas for future appellate rule changes and current developments in twenty-first century brief writing.