Two weeks ago, as reported by Howard Bashman at How Appealing, the Second Circuit joined the Seventh, Ninth, and Federal Circuits on an issue that is dividing the Courts of Appeals: Whether to reduce the word limits for federal appellate briefs by 1,000 words. In particular, these circuits have all indicated their intention to opt out of a change to the Federal Rules of Appellate Procedure, which otherwise goes into effect on December 1 this year, reducing the word limit for principal briefs on appeal from 14,000 to 13,000 words. As mundane as this dispute may sound, the fact that these particular circuits—some of the country’s busiest—have gone to the trouble to deviate from the impending rule change in order to continue to allow for longer briefs deserves careful attention for what it may signal.
By way of background, since 1998, the length limit for principal briefs has been 14,000 words. Last year, however, the Advisory Committee on the Federal Rules of Appellate Procedure proposed a new limit of 12,500 words. As reported by the New York Times and the Wall Street Journal, that change was largely opposed by lawyers, who have to write briefs, but backed by judges, who have to read them. For example, Judge Laurence Silberman of the D.C. Circuit, writing in favor of the reduced limit, argued that “briefs now tend to be much too long,” and that “[a]ll the judges on the D.C. Circuit agree with me—and so do judges I have spoken to on other circuits.” Ultimately, the Advisory Committee settled on a compromise of 13,000 words, but included a comment with the new rule urging appellate courts to grant motions to increase words limits “as appropriate.” See Fed. R. App. P. 32, Advisory Committee Notes, 2016 Amendments.
Given the view among many judges, expressed by Judge Silberman, that briefs are too long, why would the Second, Seventh, Ninth, and Federal Circuits opt out of the rule change? Here are a few possibilities:
One explanation could be that these particular circuits—three of which cover the financial centers in New York, Chicago, and Los Angeles, and the fourth of which handles patent disputes—find themselves confronting a greater volume of complex cases than other circuits, such that they have found 14,000 words to be an appropriate limit, and see no need to reduce the word limit as a general rule.
Another possible explanation could be that the judges on these courts were concerned that the rule change would bring about an increase in motions seeking higher word limits, and viewed the prospect of extra motion practice as a burden that would not adequately be offset by having to read 1,000 fewer words in any given brief.
Yet another possibility could be that these circuits recognize the difficulty of policing technical requirements like word limits. Parties sometimes file oversized appeal briefs at the last minute and, as Judge Alex Kozinski of the Ninth Circuit recently wrote, “dare us to bounce them.” Perhaps the circuits that have rejected the reduced word count hope to avoid facing an increased number of instances in which they have to decide whether to reject oversized briefs.
A final and more likely possibility, however, could simply be that these courts recognize that making long briefs shorter is very hard work. Going back in time, a similar sentiment has been expressed in various ways by John Locke, Ben Franklin, and Henry David Thoreau, among others. To all of these renowned authors and intellectuals (among others) has been attributed some version of the expression that when they didn’t have time to write a short letter, they wrote a long one instead. Perhaps the circuits rejecting the rule change are just acknowledging the reality that lawyers don’t always have the time to write short briefs, and are willing to tolerate some extra verbiage to allow parties to ensure they have fully articulated their positions. Along these lines, Judge Frank Easterbrook of the Seventh Circuit, writing in opposition to the rule change, specifically said, “allowing lawyers who think that they need 14,000 words to use them, without filing a motion, is sensible.”
Of course, it would be a mistake for any practitioner to interpret the actions of the Second, Seventh, Ninth, and Federal Circuits as any sort of endorsement of longer briefs. To the contrary, the takeaway from this debate seems clear: when writing for an appellate court, to the extent possible, be brief.
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