Noel Coward had it right in his play Hay Fever, where one character says, "Words. Masses and masses of words!" to which another replies, "They're great fun to play with." (The retort: "I'm glad you think so. Personally, they bore me stiff.") Appellate lawyers love to play with words, but there are signs that, in large quantities, they bore the federal appellate judiciary stiff.
In 1998, the federal courts shifted from page limits to word limits for appellate briefs, using a 280-words-per-page conversion ratio. Thus, principal briefs (formerly 50 pages) are currently limited to 14,000 words and reply briefs (formerly 25 pages) are limited to 7,000 words. (There are special rules for briefs in cross-appeals.) Other appellate documents, such as motions, responses, petitions for rehearing, and the like, are still subject to page limits.
A proposal is currently pending before the Advisory Committee on Appellate Rules to convert the remaining page limits to word limits, using a 250-words-per-page ratio, and to reduce the word limits for briefs by applying the same ratio. The concept of going to a "word limits only" system is uncontroversial, but the proposed conversion ratio has sparked an intense debate.
The primary argument in support of the 250-word ratio is that the Advisory Committee incorrectly assumed in 1998 that the actual empirical ratio was 280, whereas a more recent study of pre-1998 briefs shows it to have been 250. Eighth Circuit Judge Frank Easterbrook, a member of the 1998 Advisory Committee, has responded that the 280-word ratio was chosen on the basis of a detailed word count of briefs filed in the Supreme Court. So part of the debate is about the historical empirical evidence.
But the debate is also about policy. The American Academy of Appellate Lawyers has filed an extensive comment, available here, in which it argues that the proposed reduction to a 250-word ratio is based on the personal predilections of six of the ten Advisory Committee members and is unsupported by any statistical or anecdotal evidence that the current rules permit overly long briefs. The Academy points out that while the number of federal appeals has declined in recent years, the mix of cases is trending toward complex, high-dollar civil cases and complex white-collar criminal cases, which may require full-length briefs in order to properly develop the issues.
The proposed rule change is open for public comment until February 17. The Advisory Committee will then make a recommendation to the Committee on Rules of Practice and Procedure, which will in turn make a recommendation to the Judicial Conference of the United States, which will in turn make a recommendation to the Supreme Court, which will adopt a rule change subject to veto by Congress. So the fat lady won't sing in this particular opera for quite a while yet. Stay tuned.
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