Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, April 20, 2019

Saying Less: the revised Supreme Court Rules and cutting words

On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs.  The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000.  The change brings the Court in line with the federal Courts of Appeal.  Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs. 

The Court rejected one of the more controversial proposed rules.  That proposal would have limited reply briefs to 4,500 words.  Even so, the Court did shorten the time for filing a reply brief.  Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier.  The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.

 So why did the Court adopt these changes?  I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long.  Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two.  It's clear that some lawyers—yours truly included—forget that sometimes. 

So how can you come in under these shorter word limits?  That's simple—better writing.  Here are some things to do, and to avoid, to bring your brief under the word limit.

  • Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about."  Don't.  Instead of these wordy phrases, try "under," "before," and "on."  This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up.  As an aside, I've also encountered several that use "pursuant to" incorrectly.  Things don't happen "pursuant to" anyone's recollection.  If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
  • Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words.  Consider the common phrases "the issue of" or "the question of."  You're likely able to pull those out without doing violence to your brief.  Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
  • Do run a search for "ly." You're hopefully not going to find very many adverbs.  But if you do, take them out unless they're necessary.  Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
  • Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story.  It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have.  Even though replacing your client's four-word name would save space, resist the urge.  I promise, what you're gaining in space, you're giving up in clarity.
  • Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019.  If you've got to describe a temporal relationship, try words like "later" or "before."  Otherwise, just save the words and use the month or month and year. 

These aren't all the ways to save space.  But writing shorter, more coherent briefs is a mindset.  You have to start somewhere.

https://lawprofessors.typepad.com/appellate_advocacy/2019/04/saying-less-the-revised-supreme-court-rules-and-cutting-words.html

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Comments

All good advice, but I think you mean "adverbs" not "adjectives" in your third bullet point.

Posted by: Dylan McFarland | Apr 22, 2019 9:47:17 AM

For whatever reason, I can't keep those parts of speech straight when I talk about them. Thanks!

Posted by: Chris Edwards | Apr 22, 2019 10:32:17 AM

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