News & Events

Pithy Briefs to Become Procedural Mandate: The FRAP 32 Limit Loses 1,000 Words

Federal Rule of Appellate Procedure 32 currently restricts principal briefs to 14,000 words apiece,[1] but that limit will soon diminish to 13,000. For non-lawyers such a change may seem inconsequential.

After all, as the New York Times recently reported (sub. req.), “[t]he Constitution of the United States clocks in at 4,543 words,” one tenth of the present limit.

Lawyers, however, have protested the change in earnest. Nancy Winkelman, president of the American Academy of Appellate Lawyers, for example, observed that “[t]here are cases where the facts are complicated, and where areas of the law are complicated.” And the Times notes that criminal, environmental, and securities lawyers “insisted that briefs’ lengths should not be shortened because legal issues and statutes are more complex than ever.”

Word limits originally replaced page limits because lawyers were using “thin margins, squeezed spacing or small type” to get in as many words as possible. Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, perhaps the most notorious critic of such practices, famously quipped in a 1992 law review article, “The Wrong Stuff,” that the best way to lose an appeal “is to write a fat brief.” “[I]f the rules give you 50 pages,” he recommended, “ask for 75, 90, 125—the more the better. Even if you don’t get the extra pages, you will let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion.” Judge Kozinski reprised his advice in a presentation to the American College of Trial Lawyers earlier this year.

Scholars and long-time practitioners, too, have endorsed the need for more concise legal writing. Bryan Garner, Editor-in-Chief of Black’s Law Dictionary and author of The Winning Brief, advises legal writers to “[c]ut every unnecessary sentence; then go back through and cut every unnecessary word.” Mark Herrmann, Chief Counsel of Litigation and Global Chief Compliance Officer for AON Corporation and author of The Curmudgeon’s Guide to Practicing Law, similarly observes that “[a]dding words does not always add clarity.”

More pith; less fluff; fewer words. The word-limit reduction in FRAP 32 is an effort to force lawyers to follow this advice. It takes effect on December 1, 2016. But not all is lost for the prolix. The reduction of 1,000 words is less severe than the 1,500-word cut that originally was proposed, and appellate judges will retain the discretion to waive it. Given that they manage caseloads that consist of roughly 42 million words each year, however, the judges’ exercise of that discretion may be rare.

Gadson William (Will) Perry

owner

[1] Official FRAP