Monday, December 5, 2016
On December 1, 2016, several amendments to the Federal Rules of Appellate Procedure took effect. I blogged about the changes in August. Lee Peifer of the 11thCircuitBusinessBlog.com has shared a summary by the United States Court of Appeals for the Eleventh Circuit of the important changes. One of the most significant amendments is the change to Rules 28.1 and 32 limiting the length of principal briefs to 13,000 words (down from 14,000). Peifer noted that some of the courts of appeals, including the Second, Seventh, Ninth, and Federal Circuits have opted out of the lower word limits.
While the lower limits were generally opposed by the appellate bar, I am not surprised at the change. In working on an update to the book Winning on Appeal, I have had the opportunity to read comments from many federal appellate judges on the state of appellate briefs. They almost uniformly agree that briefs are just too long.
The truth is, it takes more time to write a short brief than it does a long one. That extra step of carefully editing your work and cutting out the fat is very time consuming. I have certainly seen this in student assignments that are either right at the page limit or overlength. Often these students failed to leave sufficient time in their schedule to edit their work. Lawyers run into this problem too. The Federal Circuit dismissed an appeal when counsel tried to get around the word limit by eliminates spaces between words and citations.
The late Richard Wydick's book Plain English for Lawyers offers some excellent tips for attorneys (and law students) who struggle with cutting the surplusage in their briefs. In this new age of shorter briefs, we are going to need them!