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Judges have long complained about lawyers' writing. It's too verbose, too digressive, too freaking long. Lawyers, in turn, bristle at courts' word restrictions, bans on space-saving measures like footnotes, and other frustrating constrictions. It's a battle as old as time -- or at least as old as modern litigation.
Now some courts are limiting attorney briefs even more than before. In December, federal appellate courts will reduce the maximum brief length by 1,000 words. It's a pruning that some judges don't think goes far enough, even as it causes anger among attorneys.
Principal briefs in the federal circuit courts currently max out at 14,000 words, or around 50-some pages. Amendments to the Federal Rules of Appellate Procedure, scheduled to go in to effect on December 1st, drop that to 13,000 words, and cut another 500 words out of reply briefs.
That loss of 1,000 words is actually less than the 1,500 words that the Advisory Committee originally sought to do away with. When the 14,000 word limit was adopted in 1998, it was based on a miscalculation. The Committee sought to convert the 50-page limit to a word limit, based on the idea that lawyers would write 280 words per page, or 14,000 words in 50 pages total. That should actually be 250 words per page, the Committee has since determined, limiting attorneys to 12,500 words.
An outcry from lawyers saved an extra 500 words, but many are still unhappy with the cut.
Explaining a case in 50 pages or less is no easy task. "There are cases where the facts are complicated, and where areas of the law are complicated," Nancy Winkelman, president of the American Academy of Appellate Lawyers, told the New York Times recently. Judges should focus on bad briefs, not long ones, the Academy says.
But lengthy briefs can swamp judges in excessive reading. The Times estimates that judges (or, more likely, their clerks) must read filings in about 1,200 cases annually:
The opening brief, an opposition brief and a reply would total about 35,000 words, which means each judge would be reading about 42 million words connected to his or her annual caseload.
Even with fast reading rate of 600 words per minute (above normal, and difficult to maintain when dealing with complex issues), those 42 million words would require about 1,167 hours to get through, or almost 50 full days of nonstop reading.
The changes would shave a few hours off that total. Lawyers could save judges a few more, Tenth Circuit Judge Mary Beck Briscoe says, by going even further and "excising tangential facts" along with "secondary and tertiary arguments ... on which a party is unlikely to prevail."
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