Is less really more?

Trimming word count for appellate briefs raises ruckus

De Novo Review

Michael Scodro

Michael Scodro is a partner in the appellate and Supreme Court practice group at Jenner & Block. In 2014, he joined the firm after serving for more than six years as Illinois solicitor general. Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and is vice president of the Appellate Lawyers Association.

August 2015

If a picture’s worth a thousand words, how many words is a page of written advocacy worth? The answer appears to be somewhere between 250 and 280 — depending on who you ask — and the difference is at the center of a debate over proposed revisions to the Federal Rules of Appellate Procedure.

The story begins in 1998 when Rule 32 abandoned page limits on most computer-generated briefs for word limits (there are narrow exceptions). Caps on the length of principal briefs in federal appellate courts went from 50 pages to 14,000 words, with a commensurate change — from 25 pages to 7,000 words — for briefs on reply.

The aim was not to make briefs longer or shorter. Rather, the change came as a reaction to “[t]he widespread use of personal computers,” which “made a multitude of printing options available to practitioners,” options that rendered “the 50-page limit virtually meaningless.” (FRAP 32(a)(7) advisory committee’s note.)

Currently, a package of proposed amendments to the federal appellate rules would do the same for other filings. Changes to Rules 5, 21, 27, 35 and 40 would transform page limits into word limits for computer-generated petitions for discretionary appeals, writs of mandamus and other writs, motions, en banc petitions and petitions for panel rehearing.

The challenge in making these changes is selecting a page-to-word conversion rate. Quick division shows that, in 1998, rule-makers relied on a rate of 280 words per page in converting the old 50-page limit to 14,000 words. Judge Frank Easterbrook, who was involved in the 1998 rule-making, explained that this rate arose from “a detailed count of words in briefs filed in the Supreme Court.” See “Agenda Book, Committee on Rules of Practice & Procedure,” May 28-29, 2015 (“Agenda Book”), at 353 (available at uscourts.gov/ rules-policies/archives/agenda-books/committee-rules-practice-and-procedure-may-2015).

This go-around, however, the Advisory Committee on Appellate Rules revisited the question and initially concluded that 250 words more accurately reflected the average page. Accordingly, the committee published its proposed revisions to the foregoing rules using that number (converting the 15-page limit for en banc petitions to 3,750 words, for example).

But what of the 14,000- and 7,000-word limits in Rule 32, which rely on a conversion rate of 280 words per page? The committee addressed that, too. The rules published for public comment included a change to Rule 32 that converted the pre-1998, 50- and 25-page limits using the new, 250-words-per-page rate. The upshot was that the revised Rule 32 would cut the maximum length for principal and reply briefs to 12,500 and 6,250 words, respectively.

With a substantial proposed reduction in the word limit for appellate briefs on the table, the battle was joined. The committee received public comments from judges, bar groups, law firms, individual attorneys and others.

Those favoring the proposal — including “the judges of the D.C. Circuit; all non-recused active judges of the 10th Circuit and a majority of the senior judges of the 10th Circuit; two professional associations; and three individual lawyers” — argued that tighter limits would tend to improve the quality of writing and conserve judicial time in reviewing briefs. See Agenda Book at 278, 352-97.

The opposition, however, was significant. Opponents — including Easterbrook, “22 law firms (or practice groups within law firms, my own group among them) or public interest groups; 10 professional associations; 19 nongovernmental lawyers; and two government lawyers” — stressed the complexity involved in certain appeals, the need to preserve issues, the unlikelihood that shorter briefs will be better written and the difficulty lawyers sometimes face in predicting which issues will have purchase with the court.

The committee revised its recommendations in response to these comments. Rather than 250 words per page, the committee adjusted upward to 260, meaning the new, proposed Rule 32 would limit principal and reply briefs to 13,000 and 6,500 words, respectively. Meanwhile, a proposed change to Rule 32(e) would remind circuits that they may increase these limits by local rule, and the suggested committee note to Rule 32 observes that, “[i]n a complex case, a party may need to file a brief that exceeds the type-volume limitations specified in these rules” and conveys the expectation “that courts will accommodate those situations by granting leave to exceed the … limitations as appropriate.” (Agenda Book at 339.)

At the time of this writing, the Standing Committee on Rules of Practice and Procedure has approved the rule changes as proposed. Many appellate practitioners will watch with interest as the process continues to unfold — before the Judicial Conference, the Supreme Court (and Congress, which would need to act affirmatively to reject or change the amendments) — and if the proposed reductions become law, as individual circuits determine whether to return to pre-amendment limits by local rule.