Tuesday, February 17, 2015

Word Limits and the True Illness in Appellate Briefing

The Advisory Committee on Appellate Rules recently issued a proposal to reduce length limits for briefs. Generally, practitioners appear opposed to the reduction. Some have suggested, however, that the page limits should be decided on a case-by-case basis, with fewer words permitted for uncomplicated cases and more words allotted for cases with stickier issues, many parties, or lengthy, complicated facts.   

I don’t have strong feelings about the Committee’s proposal, but I do believe the current word limits are more than sufficient for most cases and the reduced word limits (from 14,000 words to 12,500 words) would generally remain sufficient as well.

The issue with many appellate briefs isn’t the number of words—it’s the lawyers’ understanding of and ability to communicate the pertinent legal issues. Lengthy, cloudy writing usually is the product of a cloudy understanding of the issues. And often lawyers make too many arguments on appeal. Rather than focusing on arguments they might actually win, they take the kitchen sink approach and throw in anything and everything they can think of.   

Reducing word limits won’t make lawyers better writers. To be better writers, lawyers must firm up their understanding of the facts and legal issues, focus their efforts on their strongest arguments, and ensure their writing is clear and precise and accurately communicates the law and their positions in an easy-to-understand way.

When lawyers as a group acknowledge the importance of writing to the practice of law and work to improve their writing, the quality of appellate briefs—whether they’re 1,000 or 10,000 words—will improve. In the meantime, reducing word limits is—I think—an ineffective remedy for the true illness.  

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