A proposal before the Committee on Rules of Practice and Procedure, the standing committee for the Judicial Conference, would reduce the word count for principal briefs in the Federal Courts of Appeal from 14,000 words to 13,000 words. The initial proposal before the Advisory Committee on the Rules of Appellate Procedure to reduce the limit to 12,500 words was vetoed out of committee. If approved by the standing committee, the proposal will go to the Judicial Conference, chaired by the Chief Justice of the U.S. Supreme Court, the Chief Judge of each circuit and a representative judge for the District Courts. Next, it will be considered by the U.S. Supreme Court and, if Congress makes no changes, it will go into effect in December 2016.

Over time, there has been a consistent effort to reduce the length of appellate briefs in the Federal Circuit Courts. When the Federal Rules of Appellate Procedure were adopted in 1967, principal briefs were limited to 50 pages of typographical text. This was the equivalent of approximately 70 pages of today’s typewritten text. The current 14,000 word limit was established in 1998 and corresponds to approximately 60 pages of typewritten text. Several Circuit Courts, including the Third Circuit, have issued standing orders stating that motions to extend the word limitations in briefs are strongly disfavored and will be granted only upon demonstration of extraordinary circumstances.

The proposal has been met with disfavor by most appellate practitioners, but has won cheers from appellate judges. Many lawyers feel that while brevity has its place, there is a risk in not knowing what the court wants to hear and not being able to present the issues fully. Many judges, on the other hand, feel that lengthy briefs run the risk of losing their attention by failing to focus on the key issues in the case.

A fascinating study by Gregory C. Sisk, University of St. Thomas School of Law (Minnesota), and Michael Heise, Cornell Law School, analyzed 50 randomly selected Ninth Circuit-counseled cases for each of the years 2010, 2011, 2012 and 2013. The cases included both published and unpublished opinions which were coded as either a reversal or an affirmance. All cases were also coded as to whether they were argued, their issue type, the procedural posture at which the case was resolved by the District Court, the experience of the appellate attorneys and the nature of the parties on each side. The opening briefs were then measured by the number of words they contained.

A list of some of the study’s findings follows:

• “Appellant brief length proved highly significant and in a positive direction (i.e., correlated with a higher probability of reversal).”
• “Longer briefs by appellants were associated with a greater probability in achieving reversal, while exceptionally short briefs were much more likely to be filed in losing cases.”
• “A reduction [in the number of words] may cut more sharply against the appellate lawyer in a civil appeal who, having to overcome the general inclination of appellate courts to affirm trial courts, may need space to present a winning argument.”

The conclusions drawn from the study indicate that experience in federal appellate work by a lawyer makes that lawyer’s client more likely to prevail on appeal. Setting out to write the most succinct brief does not pave the way to success. Conversely, fattening an appellate brief with more words is not a promising strategy for appellate victory. The greatest priority for the civil appellate brief-writer should be “pervasive completeness.” The appellate advocate needs to be given room to make the tailored argument, determining the length of the brief in accordance with the complexity of the case.

¹ Gregory C. Sisk and Michael Heise, “‘Too Many Notes?’ An Empirical Study of Advocacy in Federal Appellate Procedure,” 12 Journal of Empirical Legal Studies

Tagged: Appellate Practice, Litigation, Appellate Procedure