An article posted on The Intelligencer this week surrounds the recently proposed appellate word limits and how they emphasize the need for planning.  Many times, general counsel and in-house attorneys do not pay close attention to proposals to amend the Federal Rules of Appellate Procedure, as the rules often do not affect the outcome of a case and typically deal with the logistics of filing and presenting appeals.  This controversial proposal to amend the rules that would reduce the length of the briefs filed by the appellant and appellee is something to which all lawyers should pay attention.

This proposed change is significant because the written briefs of the appellant and appellee are the heart and soul of appellate litigation, the primary means by which parties explain their case and communicate their legal positions to the judges who will decide their appeal. When it comes down to it, the proposal stands to affect a company’s ability to have its voice heard on appeal.  Support of the proposal, which comes from a number of federal appellate judges, stems from the fact that lawyers often file briefs on appeal that are poorly written and much too long. Such briefs, the supporters argue, are not effective as works of advocacy and are burdensome on judges and clerks.

While opponents agree that all appellate briefs should be written as clearly and concisely as possible, they are also skeptical that there is a legitimate need to reduce the maximum word limits for briefs, especially as appellate filings have decreased by 15 percent over the past 10 years, according to the statistics of the Administrative Office of the U.S. Courts – making the courts of appeals less burdened in terms of the total amount of briefing they must review.

It will be interesting to see how this unfolds, as if the revised proposal ultimately is approved, general counsel and in-house lawyers will have to work closely with their appellate counsel to ensure that issues are selected, organized and briefed with the new word limits in mind. Additional planning and coordination will be necessary in case there is a need to file a brief that exceeds the word limit, to demonstrate why the additional words are needed to adequately present the case.

To read the full article, please visit http://www.thelegalintelligencer.com/home/id=1202724848934.