The Advisory Committee on Appellate Rules (the federal judiciary’s policymaking body) has proposed amendments to Rules 5, 21, 27, 28.1, 32, 35, and 40 of the Federal Rules of Appellate Procedure that would reduce the length of various filings in the Circuit Courts. As we covered back in February, the proposal garnering the most attention is the one to reduce the word limits for federal appellate briefs. Under the current proposal, the maximum length of principal briefs would be reduced from 14,000 to 13,000 words and reply briefs would be reduced from 7,000 to 6,500 words. (An earlier proposal had set the word count limits at 12,500 and 6,250, respectively.)
After publishing the proposed word count reductions back in August 2014, the Advisory Committee received substantial public comments from lawyers, judges, and bar associations. Many attorneys voiced opposition, claiming the new word limits would impede litigants from properly presenting their arguments on appeal and also would increase the filing of motions seeking leave to file overlength briefs. Many judges and courts, however, supported the word count reductions because of their view that federal appellate briefs are often unnecessarily long and burdensome on courts.
The proposed changes to the federal appellate rules will not go into effect until December 2016 given the long process involved for the adoption or amendment of federal rules (which includes the U.S. Supreme Court, and possibly Congress). No matter what word limits remain in place, appellate practitioners would be wise to pay heed to the expressed views of many judges who expect concise briefs. One thing is for sure. Word limits need to be taken seriously, and any attempt to stretch the rules may have dire consequences.
One litigant in the Federal Circuit recently found this out the hard way. In Pi-Net International Inc. v. JPMorgan Chase & Co., Case No. 2014-1495 (Fed. Cir.) (PDF), the Federal Circuit dismissed a patent appeal against JPMorgan Chase because the plaintiffs tried to evade the 14,000 word limit under Fed. R. App. P. 32(a)(7) by “squeezing various words together and deleting the spaces that should appear between the words.” As but one example, the Court highlighted a case citation on page 3 of plaintiffs’ first corrected brief which read as follows:
As the Federal Circuit correctly pointed out, the citation “is not one word, although that is how it appears” in the brief. Instead, “when written properly,” it is 14 words:
Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
The plaintiffs in PiNet also moved for leave to file a new “corrected brief,” which similarly was an attempt to evade the word limit. For example, the Statement of Facts on page 1 of the new corrected brief read as follows: “Judge Andrews, after two years, transferred case to Judge Robinson. Markman conducted a week later. DDC ruled. Two days later, Notice of Appeal filed, against client instructions. Judges failed to recuse despite financial and relationship conflicts of interest. 60(d)(3) Motion is pending in DDC. Stay of Appeal or dismissal without prejudice is proper. Motion-to- Substitute-Plaintiff is pending in CAFC.” The robotic tone of the plaintiffs’ brief—omitting words such as “a” and “the”—clearly did not sit well with the Court. It denied the plaintiffs’ motion to file the new corrected brief and dismissed the appeal in its entirety.
The lesson is painfully obvious: Don’t game the rules or the Court. If you are close to the 14,000 word limit, don’t omit necessary words, develop a sticky space bar, or engage in word processing wizardry to get under the word limit. Better yet, if you are close to the word limit, go back for another round of revisions and shorten your brief if possible. The Court will appreciate your concise writing, and your client will have confidence in your crisp advocacy. In short, make your “brief” truly brief.