Have you been anxiously awaiting yet further amendments to the federal appellate rules? Well, no, neither have we. But they're here, whether we like it or not. Effective December 1, 2013, two significant changes have been made, one at the national level and one in the Fifth Circuit local rules, both affecting briefs.
The first change relates to the content of the parties' principal appellate briefs. Until now, such briefs have had to contain both "a statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below" and "a statement of facts relevant to the issues submitted for review with appropriate references to the record." This bifurcated approach sometimes led to confusion about which information belonged in which of the two separate statements.
Now, the two statements have been combined into a single "concise statement of the case." This statement must set out the facts relevant to the issues submitted for review, describe the relevant procedural history, and identify the rulings presented for review, all with appropriate references to the record. Note the words "concise" and "relevant" – it isn't necessary or appropriate to include irrelevant dates, facts that don't relate to the issues being raised on appeal, immaterial procedural rulings, and the like.
The second change relates to the fascinating topic of record citation formats. The Fifth Circuit has adopted a local rule allowing the clerk to specify a citation form for citations to the record. The clerk has in turn directed that a reference to page 123 of the record on appeal be in the form "ROA.123". (In multi-record cases, the form is "ROA.13-12345.123", where 13-12345 is the docket number of the record being cited.) The clerk's office hasn't said, but presumably they will at least glance through filed briefs to make sure the proper citation format is being used.
Some might wonder whether the court and clerk have better things to do than delve into such minutiae. But the change is a meaningful one: it will permit the Fifth Circuit to use software to create hyperlinks to the record in electronically-filed briefs. The software already recognizes standard case citation formats and creates hyperlinks to the cited cases. The result is that the judges can spend more time learning about the case and less time searching through records.
The local rule change was not without some controversy: the originally proposed citation format was "ROA 123." Why, then, the period instead of the space? Because "ROA.123" counts in most word processors as one word, whereas "ROA 123" counts as two and eats further into the allowable word count. A word of caution, though: the choice of the one-word format should not be construed as a license to use the extra word to insert "clearly" or some other distracting and unnecessary word in the brief!
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