Right-Sizing your Appellate Brief in the Digital Age

How long is long enough for your next appellate masterpiece? In our experience, “long enough” is generally shorter than the word limit under the rules, unless, perhaps, you have a post-trial appeal or other extensive factual record, or a higher than average number of compelling issues. As a former appellate judge and former appellate clerk, we can attest that we have never, ever heard anyone we worked with in the appellate courts say they wished a party’s brief was longer. Ever. A brief must be long enough to let your themes and narratives sing, and to support your arguments with record citations as well compelling analysis. Generally, however, clear and concise are better. Brevity shows more discipline and skill than long-windedness, and is frankly easier for the reader to digest.

Reflecting on optimal brief length is particularly appropriate given that 2016 has brought amendments to both the federal and state appellate rules relating to word count limits for briefs and motions. Our last appellate column of the year seemed not only like a good opportunity to make sure we are all aware of these new rules, but also to suggest that we are fast approaching an era where word count plays a lesser role in determining brief content than ever before. In an age where e-briefing has the potential to allow for more interactive, animated (perhaps literally) and engaging appellate briefs, we expect word count will matter much less in the next decade than it has and does today. In an era of e-briefing, the most persuasive briefs will be those that utilize emerging briefing technology to create a multidimensional briefing experience for appellate judges, not just smartly use up their word count. Before we turn to e-briefing’s potential to transform appellate briefs, here is a short overview of the recent rule amendments that should be on your radar.

2016 federal appellate rule amendments

On Dec. 1, 2016, a set of rule amendments to the Federal Rules of Appellate Procedure became effective. While a few of the amended federal rules relate to other subjects, the most talked about aspects of the new rules have to do with word limits. Under amended Rule 32, the word limit for principal briefs in a case with no cross-appeal has been reduced to 13,000 words (from 14,000 words) and reply briefs are limited to half that, 6,500 words (from 7,000). For cross-appeals, amended Rule 28.1 dictates that the first brief (appellant’s brief) is limited to 13,000 words, the second brief (appellee’s principal and response brief) is limited to 15,300 words (down from 16,500), the appellant’s response and reply brief is limited to 13,000 words, and the appellee’s reply brief is limited to 6,500 words.

In addition, motions, which had been governed by page limits, now have word limits under the amended rules for digitally-produced motions, responses, replies, petitions, answers, and rehearing and en banc filings. (See Rules 5, 21, 27, 35, and 40.) While previously only required for briefs, now a Certificate of Compliance with Type-Volume Limit (Form 6) is required for all digitally-created documents. The amended rules and details of the amendments can be found on the Eighth Circuit’s webpage, available at http://www.ca8.uscourts.gov/rules-procedures, as well as the webpages of the other federal courts of appeal. This is more than just a technicality for legal administrative assistants. We recently saw a motion rejected by a federal appellate court because the certificate of compliance was not submitted. Rules matter.

Check the local rules!

Make sure to check the local rules of the federal appellate court in which you are practicing, because several of the appellate courts have not adopted the new, lower word limits from the amended FRAP. Or more accurately, they have amended their local rules to override the amended FRAP (as the FRAP allows local rules to do) in order to retain the longer preexisting word limits. The Ninth Circuit and Federal Circuit, two courts in which our firm frequently appears, just amended their local rules to retain the prior FRAP word limits. The Seventh Circuit did the same. Thus briefs are still subject to the 14,000 words limit there. The Eighth Circuits and Sixth Circuits, however, have not, and thus the new lower word limits in the amended FRAP apply.

2016 state appellate rule amendments

The Minnesota Appellate Courts also implemented rule amendments relating to word limits for several categories of submissions, which became effective July 1, 2016. Petitions for discretionary review under Rule 105, which previously were limited to 10 pages, are now limited to 4,000 words. This change is actually an increase in the length for petitions for discretionary review, as most briefs contain between 280 and 250 words per page, which correlates to a range of 14-16 pages. So the new rules allow for meaningfully longer petitions than the prior 10-page limit. The response to the petition is also limited to 4,000 words, and the reply to 2,000, an increase from five pages before this amendment.

Under amended Rule 117, petitions in the Minnesota Supreme Court for review of a decision of the court of appeals (“PFR”) now have a 2,000 word limit, up from five pages. Petitions for accelerate review by the Supreme Court under Rule 118 now have a limit of 4,000 words, up from 10 pages.

Just like the amended federal rules, under the amended state rules, a Certificate of Document Length must now be filed with petitions for discretionary review, PFRs, and petitions for accelerated review, where before one had only been required when filing a brief. The Supreme Court’s order with redlines of the 2016 rule amendments can be found on the Court’s website at http://www.mncourts.gov/SupremeCourt/Court-Rules/Recent-Rules-Orders.aspx.

Word limits at the dawn of e-briefing

There is no doubt that word limits matter today, in the age of e-filing but where briefs themselves still are not particularly high-tech. Most of us file our briefs as PDFs, hopefully one that is searchable, but either way, today most e-filed briefs are the functional equivalents of traditional briefs filed on paper. This era may be short-lived, however, as the age of electronic briefing, or e-briefs, is just around the corner.

Electronic briefs have the potential to deliver both internal and external functionality, such as hyperlinks allowing the reader to travel to other portions of the brief itself, or to record materials or case law that support the appellate arguments. The Council of Appellate Lawyers has just released an exciting (well, exciting to appellate nerds) white paper surveying technological realities in the various state appellate courts nationwide and given that, best practices for expanding e-briefing. See “Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs,” Council of Appellate Lawyers, Nov. 2016 (online publication forthcoming; contact column authors for a copy). The report encourages ideas like filing a brief and appendix as one PDF to allow for internal hyperlinks between the brief and supporting portions of the record. (Id. at 16-17.) Allowing a second copy of briefs to be filed in a non-fixed format file, such as an HTML, DOCX, or RTF files, enables judges to customize how they view a brief by allowing them to manipulate font type, size, line spacing, and margins. (Id. at 18-19.)

Appellate courts, and rules, have a way to go before e-briefing can become commonplace, but with so many courts and judges reading court materials on devices other than paper, e-briefing is clearly the way of the future. In the meantime, remember, good writing is still good writing. Whatever the format, briefs need to be concise, and in most cases, that means not pushing against those word limits. But also keep in mind that before too long, how many and which words may not be the only way we can make our briefs compelling. We will have multi-dimensional briefs that invite readers into the record, and strive to seamlessly integrate that into our carefully crafted prose. We can’t wait.

Reprinted with permission of Minnesota Lawyer ©2016