Should the word limit for federal appellate briefs be decreased?

Opening and answer briefs in federal court are presently limited to 14,000 words, but a proposed amendment to the Federal Rules of Appellate Procedure would decrease that limit to 12,500 words. The limit on reply briefs would fall from 7,000 to 6,250 words.

In recent years, I’ve mostly worked on appeals in the New Mexico state appellate courts, where the word limit for opening and answer briefs is only 11,000 words. I’ve never had any real problem making my arguments within these limits, and the limit forces one to be selective and focused in choosing which issues to present on appeal.

Thus, I tend to think that reducing the federal word limit to 12,500 words will not result in any real disadvantage to litigants. The reduced word limit, if adopted, would force lawyers to be more succinct, and reduce the workload of federal appellate judges. If you want to submit a comment on this proposal, you can do so at this link. The deadline for submitting comments is February 17, 2015.

But what if you think your case warrants a word extension? I don’t know how liberal the Tenth Circuit is in granting word extensions (I’ve never asked for one there), but if you would like a word extension in a New Mexico state appellate court, then keep dreaming, because It. Ain’t. Gonna. Happen.

The New Mexico Court of Appeals “views requests to exceed the page limitations with extreme disfavor, and they will rarely if ever be granted. The Court’s experience in reading briefs in excess of the page limitations is that such briefs are almost never necessary and frequently of significantly lesser quality than briefs with page limitations, even in complex cases.” N.M. Court of Appeals, Policies and Procedures, May 21, 2013, at p. 30, paragraph 6. I suspect the New Mexico Supreme Court is of the same mind.

In several cases, I’ve seen lawyers move for page or word extensions, and in each instance the Court of Appeals denied the motion. One of those motions was unopposed, and it’s pretty unusual for the Court to deny an unopposed motion, which shows how strongly the Court is opposed to granting any sort of extension.

Does this no-extension policy have costs? I think so. While New Mexico’s 11,000 word limit is adequate for most cases, there are almost certainly some cases of unusual complexity, or cases with extremely lengthy records, in which the word limit does not allow for an adequate presentation of the appellant’s case, or a full answer from the appellee.

The problem is knowing what cases those are. The number of cases where attorneys think they need a word extension is greater than the number of cases that actually warrant one. And when the Court receives a motion for a word extension (i.e. before the briefs are filed), it is usually not in a good position to determine whether the case is one of those few that might actually deserve one.

My belief is that the Court is aware that extensions might be warranted in some case, but has adopted a policy of denying nearly all word extensions because it is too difficult to separate the wheat from the chaff.

What are your thoughts on this issue? Do you believe that the federal word limit should be reduced to 12,500? Do you think that New Mexico’s 11,000 word limit is just right, or not enough? I’d especially be interested in hearing from anyone who has succeeded in persuading a New Mexico appellate court to extend the word limit. If you’ve done so, please let us know what sort of case it was.

 

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4 Responses to Should the word limit for federal appellate briefs be decreased?

  1. Pingback: “Should the word limit for federal appellate briefs be decreased?” | Internet Tax Lawyers

  2. Karl Erich Martell says:

    Hi Emil,

    The only time I’ve ever requested a word extension (at the time it was actually a “page extension”) was in a death penalty case: the NMSC granted it. Other folks at the state appellate PD have gotten page and word extensions, but they’re rare. Even despite the difficulties presented by NM criminal appellants possessing the right to have all their issues (this can be a challenge when mental health problems are present) briefed on appeal by appointed counsel, see State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982 (an indigent criminal defendant has a right to have all issues raised by appointed appellate counsel), and State v. Boyer, 1985-NMCA-029, ¶¶ 17-24, 103 N.M. 655, 712 P.2d 1 (same), the NM word limits usually can be met. cheers, erich

    • Emil J. Kiehne says:

      Erich,

      Yes, it does seem appropriate to grant word extensions in death penalty or other serious criminal cases. My sense is they’re even more rarely granted, if at all, in civil cases.

  3. Pingback: Dau & Haeggquist Law Firm ⋆ Lower Word Limits for Briefs?

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