On December 1, 2016, a set of rule amendments to the Federal Rules of Appellate Procedure became effective. The amended rules and details of the amendments can be found on the Eighth Circuit’s webpage, available at http://www.ca8.uscourts.gov/rules-procedures, as well as the webpages of the other federal courts of appeal. While a few of the amended federal rules relate to other subjects, the most controversial aspect of the new rules has to do with new and slightly reduced word limits.
Under amended Rule 32, the word limit for principal briefs in a case with no cross-appeal has been reduced to 13,000 words (from 14,000 words) and reply briefs are limited to half that, 6,500 words (from 7,000). For cross-appeals, amended rule 28.1 dictates that the first brief (appellant’s brief) is limited to 13,000 words, the second brief (appellee’s principal and response brief) is limited to 15,300 words (down from 16,500), the appellant’s response and reply brief is limited to 13,000 words, and the appellee’s reply brief is limited to 6,500 words.
Make sure to check the local rules of the federal appellate court in which you are practicing, however, because several of the appellate courts have not adopted the new, lower word limits from the amended FRAP. At the time of this post, the majority of the federal courts of appeals have let the amended FRAP rules with the lower word limits take effect. The First, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits are all now operating within the newly reduced word limits. The Second, Seventh, Ninth, and the Federal Circuits, however, have amended their local rules to override the amended FRAP (as the FRAP allow local rules to do) in order to retain the longer preexisting word limits. Thus briefs are still subject to the 14,000 words limit in these circuits. When in doubt, check the local rules. Then check them again. Always review your circuit’s local rules and other website-based resources, such as briefing checklists, well before your brief is due to make sure you are on track and complying with the rules in your particular circuit.
In addition, under the 2016 appellate rule amendments, non-brief submissions that before had been governed by page limits now have word limits, including digitally produced motions, responses, replies, petitions, answers, and rehearing and en banc filings. (See FRAP 5, 21, 27, 35, and 40.) And while previously only required for briefs, now a Certificate of Compliance with Type-Volume Limit is required for all of these digitally created documents. This new Certificate of Compliance requirement for submissions beyond briefs is not just a technicality. I recently saw a motion rejected by a federal appellate court because it lacked a certificate of compliance. In another instance, the court of appeals accepted the submission with a stern warning that the next time a filing was submitted without a Certificate of Compliance, it would not be rejected.
Do word limits matter? Of course, but perhaps they shouldn’t matter as much as they do. Briefs nudging at the word limit are usually too long-winded. I typically strive for briefs well under word limit, because brevity shows more discipline and skill than long-windedness, and it is far easier for the reader to digest. A compelling brief must be lengthy enough to let your themes and narratives sing, and to support your arguments with record citations as well astute legal analysis. But strive to save your “word-limit pushing” briefs for post-trial appeal or other situations with truly extensive factual record, or particularly complicated appellate issues. In nearly all instances, shorter is better. Appellate judges (and their law clerks) will appreciate you for it.