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Nov. 16 — The new, reduced federal appellate brief word limit, effective Dec. 1, has split the circuits, perhaps because it “is a solution in search of a problem,” Chief Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit told Bloomberg BNA.
Seven circuit courts of appeals have decided to adopt the new rule, four have rejected the rule, and two others haven’t yet said whether they will adopt the rule.
Amended Federal Rule of Appellate Procedure 32(a)(7)(B) mandates that an appellate brief contains no more than 13,000 words, reduced from 14,000.
The “vast majority” of appellate briefs don’t present a problem because they are well below the word limit, Wood said.
This is why Wood spoke against the proposed decrease in March 2016 at the at the Judicial Conference of the United States, and why the Seventh Circuit opted out of adopting the amended FRAP 32.
Wood conducted an informal survey of the briefs filed in the Seventh Circuit in the past couple of years and concluded that about 85 percent were at or below 12,500 words.
“I think lawyers in the country are careful writers and they are trying to do their job as well as they can,” Wood said.
Lawyers “self-regulate,” meaning that they choose not to use “every last word that is authorized,” Wood said. This is why the Seventh Circuit is opting out of the new word limit, she said.
An appellate attorney also disfavors the reduced word limit but for different reasons.
It addresses the result of a problem not the cause of it, Howard J. Bashman, Willow Grove, Pa., told Bloomberg BNA.
Bashman is author of the blog How Appealing.
The problem is that lawyers aren’t great writers and a reduced word count won’t improve their writing skills, Bashman said.
To address this problem of repetitive, poor writing, courts should sponsor programs for lawyers “to be better brief writers and advocates,” he said.
The shorter length will negatively affect the good advocates, Bashman said.
These are the appellate attorneys who tend to have more complicated cases, he said.
It’s precisely these cases that “most likely justify” the longer brief length because of “complicated facts or legal issues,” Bashman said.
These advocates “don’t need to be told to be succinct” because they are good writers, he said.
They will either have to reduce the number of issues addressed in a brief or not fully address each issue, Bashman said.
“This could have adverse consequences to clients being represented,” he said.
Another appellate attorney who favors shorter briefs acknowledges the new limits could pose problems for some attorneys.
But “there are some attorneys who may have” large, complex cases requiring “extensive briefing,” this isn’t an issue “for most attorneys in most cases,” Jason P. Steed told Bloomberg BNA.
Steed, an attorney with Bell Nunnally, Dallas, represents clients in state and federal appellate courts.
Most attorneys run up against the word limit, no matter what it is, he said.
“I think shorter briefs are better for the judges and for the courts” and they “force attorneys to be more concise,” Steed said.
My “sense is that I’m in the small minority of” attorneys who favor shorter word limits, he said.
The majority of the circuits favor the shorter limits but several have affirmatively opted out of adopting them.
The Second, Seventh, Ninth and Federal circuits—what Bashman calls the “hardest-working circuits”—have rejected the 13,000-word limit.
They “realize certain cases need the current limits,” he said.
Bashman believes this is because they weighed the pros and cons and realized that “their time is better spent dealing with briefs that may be overlong than trying to deal” with an even greater increase in volume of motions seeking to expand the word limit.
If the Seventh Circuit had gone down to 13,000 words, Wood would feel an obligation “to take a closer look at the motions,” she said.
Cases that exceed the word limit are “disfavored,” however, because they require a “micro-manage-y” decision that is time-consuming, she said.
The Third Circuit, which didn’t opt out, has for years been plagued by time-consuming motions.
It has been “so overburdened by seemingly meritless motions” asking for increased word limits, Bashman said.
The court had to issue an order in 2012 strongly discouraging the filing of such motions and had to designate a three-judge panel to rule on the motions.
In once instance, it took the court months to rule on such a motion, which is a “failure of justice,” because during the time the motion was pending, the briefing of the case was stayed, Bashman said.
The First, Fourth, Eighth, Eleventh and D.C. circuits will also implement amended FRAP 32 on Dec. 1.
The methods for promulgating local rules varies from circuit to circuit, Jackie Koszczuk, public information officer for the Administrative Office of the U.S. Courts, told Bloomberg BNA.
Many circuits “use some sort of committee structure, sometimes but not always called a rules committee,” Koszczuk said.
The Sixth Circuit, for instance, which has adopted the amended rules in their entirety, appointed attorneys to serve on its advisory rules committee.
The advisory committee fields any comments about proposed amendments to the federal rules of appellate procedure and passes them along to an internal rules committee, Susan Rogers, chief deputy clerk for the Sixth Circuit, told Bloomberg BNA.
The rules committee reviews any suggestions and sends them to the full court, which would ultimately vote on any changes, Rogers said.
The remaining circuits—the Fifth and the Tenth—haven’t yet released an official statement about FRAP 32. Because they would need to affirmatively opt out and haven’t, all signs point to them going ahead with the amended version, Bashman said.
Seventh Circuit Judge Richard A. Posner said he admired “witty and concise opinions” in his dissent in Alliance to End Repression v. City of Chicago , 733 F.2d 1187 (7th Cir., 1984).
Will these shorter briefs be more concise?
Until the real problem—poor writing—is addressed, “bad appellate lawyers whose briefs drone on and on” will continue to file “unnecessarily long briefs and judges will continue to be disgruntled by them,” Bashman said.
This “solution won’t be satisfactory in the long run, I suspect,” he said.
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