On December 1st, 2016, new amendments to the Federal Rules of Appellate Procedure (FRAP) will go into effect. Some of the changes will significantly impact federal appellate practice. A practitioner in a circuit court of appeals will need to pay particular attention to the amendments that will shorten permissible brief limits for briefs.
Circuit Court of Appeals: Three Ways to Measure Document Size
The FRAP provides three ways to measure—and therefore, limit—the length of documents filed in a circuit court of appeals. The most basic method simply counts the number of relevant pages in the document. For example, a party’s principal brief will be accepted if it is 30 pages or less. Fed. R. App. P. 32(a)(7)(A). Or, if the filer has prepared the brief using monospaced typeface (like text from a typewriter), the limit can be set by the number of lines of text. Fed. R. App. P. 32(a)(7)(B)(i).
But the most popular measuring method by far is the word-count method. Fed. R. App. P. 32(a)(7)(B)(i). Modern word processing techniques have made proportional typeface almost ubiquitous, and word counts can be tallied with the click of a mouse.
But probably the greatest factor pushing circuit court of appeals filers to the word-count method is that FRAP word limits result in a much larger volume of permitted text than the other methods. For example, an appellant’s brief that hits the 14,000-word limit could result more than 50 pages of text. That’s nearly twice the size of a brief filed using a page limit method. Very few attorneys will miss a chance to double the amount of space available to describe the client’s case, and argue for the client’s benefit.
Circuit Court of Appeals: New Word Limits
The FRAP amendments coming December 1st will bring some changes to the word-limit method, including across-the-board reductions in allowable word counts.
Principal briefs in regular appeals will go from 14,000 to 13,000 words, which will lower the allowable word count for reply and amicus briefs (set at half the amount allowed for principal briefs). Appellees’ principal briefs in cross-appeals (Fed. R. App. P. 28.1(e)(2)(B)) will go from 16,500 to 15,300 words.
Also, Fed. R. App. P. 27 (motions) and Fed. R. App. P. 21 (extraordinary writs) will add a word-limit option. (Unlike the brief size-limit rules, these currently only state a page limit.)
I will describe another major change to the circuit court of appeals rules—amicus brief filings—in a later post. So watch this space!