Murder Your Darlings: Always Abide By Word-Count Limitations in the Federal Appellate Courts

Bill White, Esq.

“Murder your darlings” is a quotation often attributed to William Faulkner. Not an exhortation to commit homicide, the famous author is observing that good writing often requires striking cherished sentences.

This quotation comes to mind frequently in the context of appellate practice, where word-count limitations are strict and darlings must sometimes be killed to comply with the rules. This issue of culling words arose again in connection with an April 20, 2015 decision in Pi-Net International, Inc., et al. v. JPMorgan Chase & Co. by the United States Court of Appeals for the Federal Circuit, which dismissed an appeal for a word-count violation.

Briefs in the federal circuit are limited to 14,000 words for principal briefs, 7,000 words for reply and amicus briefs and 16,500 words on a brief for an appellee-cross-appellant. A party to an appeal is required to certify that a brief is within these limits. If a party wishes to exceed them, the rules require a showing of “extraordinary reasons,” and the court must grant permission. If a limit is surpassed without permission, the court or an adversary looking for an advantage, will notice the violation and object. The punishment can include any combination of sanctions, taxed costs or dismissal of the appeal.

In Pi-Net, the appellants’ first-submitted principal brief improperly counted published decisions, such as Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012), as one word by deleting the space between each word. By making several super-words, appellants thought they found a way to circumvent the 14,000-word limit. The court gave a sharp rebuke by ordering them to show cause why the offending brief should not be stricken and the appeal dismissed.

Appellants responded by submitting a second, so-called “corrected brief” that removed the offending words. However, against the spirit and letter of the rules concerning word-count limitations, appellants removed case citations entirely, replacing them with a system of shorthand and abbreviations that the court described as “so poorly explained that it is nearly incomprehensible.” The court did not permit appellants any further attempts to file a rule-compliant brief, and the appeal was dismissed.

The Pi-Net matter is just one of numerous, similar examples where practitioners invite the ultimate sanction of dismissal and the total implosion of their efforts preparing an appeal. By following Faulkner’s advice to murder their darlings or by simply being judicious with their words, appellate practitioners can avoid such outcomes. And yet, as long as word-count limitations exist, there almost certainly will be word-count limitation violators. Let this case send a clear message that word-counts matter a great deal.

Tagged: Appellate Practice, Litigation, Appellate Procedure, United States Court of Appeals for the Federal Circuit


 
 

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