We’ve posted previously about the proposal to reduce the word limit for federal appellate briefs from 14,000 to 12,500 words, explaining that the reduced limit would probably not be a problem in most cases, but might pose a formidable obstacle to more complex or record-intensive appeals.  Now, data from the Eighth Circuit indicates that, even with the current 14,000 word limit, only about 15% of briefs over 30 pages (briefs under 30 pages do not require a word count) exceed 12,500 words. (Hat Tip: How Appealing).  As Howard Bashman of “How Appealing” puts it, this makes the proposed decrease seem like “a solution in search of a problem.”

How Appealing also linked to an interesting alternate suggestion (not yet available on the comments site) by the National Immigration Justice Center: when submitting a brief between 12,500 and 14,000 words, counsel would have to make an “attestation” that the complexity of the issues and/or argument warrant the length of the brief.  It is possible that such a requirement might make attorneys think twice before exceeding 12,500 words. On the other hand, the attestation could become boilerplate.

The comment period does not end until February 17, but two circuits, (Tenth and D.C.) have already submitted comments supporting the decrease. Judge Easterbrook of the Seventh Circuit weighed in individually to oppose the decrease, pointing out that “[m]any cases in courts of appeals are every bit as complex as those in the Supreme Court,” and that “cases have more issues on average, and lawyers often must devote substantial space to discussing evidence.”  Judge Silberman of the D.C. Circuit disagreed with the analogy to Supreme Court practice,  and amicably quipped that  Judge Easterbrook’s position might stem from his “unique technique” in reviewing briefs: “if he is not persuaded by the opening brief, he stops reading.”  It is also worth noting that the Committee on Rules of Practice and Procedure is currently chaired by the Sixth Circuit’s own Judge Sutton, whose opinions embody his well-known preference for concise, straightforward legal writing.

Even if the proposed decrease is not adopted, appellate counsel would do well to take heed of the views and preferences expressed by judges and/or circuits in the comments when writing and—most importantly—editing their appellate briefs.

UPDATE: this post has been corrected to reflect that the Ninth Circuit’s comment did not oppose the decrease at issue here, but rather addressed a different proposed change. (H/T How Appealing).