FRAP 32: Do Federal Appellate Briefs Need to Be Shorter? - Strategist
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FRAP 32: Do Federal Appellate Briefs Need to Be Shorter?

We've been quietly watching a proposed change to the Federal Rules of Appellate Procedure wind its way through the appropriate channels, wondering if it's worth writing about. As the proposal has gathered steam, it turns out it's created as much divide as Team Edward v. Team Jacob -- minus the abs and the longing looks.

The proposal to reduce the maximum length of federal civil briefs from 14,000 words to 12,500 words has drawn comments from lawyers and judges alike -- and guess who's on which side of the proposal.

Why This Is Good

The proposed change to Rule 32 is good for a few reasons. First, it corrects a problem with the 14,000-word limit, which was instituted in 1998 when the FRAP switched from a page limit to a word limit. It was always assumed that 280 words fit on a page, and at the old 50-page limit, this equaled 14,000 words. Subsequent analyses concluded that it was more like 250 words per page, which comes out to 12,500. (It's worth noting that this version of events, as well as whether the 250-word calculation is accurate, is actually hotly disputed.)

On Team Fewer Words is Judge Laurence Silberman of the D.C. Circuit Court of Appeals. When he started on the D.C. Circuit 30 years ago, 12,500 words was actually the limit. In his opinion, increasing the limit "was a mistake; the briefs now tend to be much too long."

Lest you think all lawyers are on Team More Words, the Federal Courts Committee of the New York County Lawyers Association endorses the change, citing the more correct 280-words-per-page figure.

Why This Is Bad

No less an authority than Judge Frank Easterbrook of the Seventh Circuit Court of Appeals, who actually drafted the current version of Rule 32 back in 1998, doesn't like this change, as it creates an "unjustified difference" between the size of Supreme Court briefs and the size of appellate briefs, which are "every bit as complex as those in the Supreme Court."

Silberman directly addressed Easterbrook's claim in his own comment, noting that Supreme Court merits briefs, unlike appellate ones, are more difficult but also more focused, meaning that a larger word count will yield more substantive discussion and less fluff.

Jeffrey White of the Center for Constitutional Litigation is against the change, claiming that "blanket reduction in the size of briefs and other filings will reduce the quality of appellate advocacy and undermine proper decision making by the federal appellate courts." Sometimes you need those extra 1,500 words, especially given "[t]he inexorable growth of statutes and regulations."

Why Nobody Needs to Care

Howard Bashman's How Appealing, the go-to blog for appellate litigation, linked to an Eighth Circuit study showing that only 15 percent of briefs submitted in 2008 were over 12,500 words. Given this figure, Bashman asks, "the question remains -- has a need for this rule change been established?"

If you want to add your two cents, hurry up! The comment period closes today (February 17, 2015).

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