The proposed Supreme Court rules changes announced on Nov. 1 came as an unpleasant shock to many court advocates.
The biggest changes were significant cuts in the word limits on merits briefs—from 15,000 to 13,000 words—as well as reply briefs and amicus briefs. And the most unpopular of these seems to be trimming reply briefs from 6,000 words to 4,500.
Shrinking the word counts should not have been much of a surprise. Federal appeals courts made similar trims not long ago, and at the Supreme Court level, they’ve probably been in the works for a long time. It is easily traceable to Chief Justice John Roberts Jr., who beefs about overly long briefs whenever he can.
As far back as 2007, Roberts famously told legal writing expert Bryan Garner, “I have yet to put down a brief and say, ‘I wish that had been longer.’” And, as recently as Oct. 16, Roberts said this in a public conversation at the University of Minnesota Law School:
“Our word limits work out to about 50 pages a brief, and you pick up a brief’s that’s 50 pages long, you pick up the next brief and it’s 50 pages long, pick up the next brief and it’s 50 pages, 50 pages, and [then] it’s 35 pages. Whoa! You stop, and the first thing you do is look at the cover and see who the lawyer is, and you say, ‘I like her.’ The next thing you do is you think and realize, she must have a lot of confidence in her arguments, because she gets them in in 35 pages and doesn’t need the extra pages. It’s invariably not only shorter, but better-written.”
Those who don’t like the new rules have until Nov. 30 to voice their views in writing to the clerk of the court. Based on our own survey of practitioners, as well as comments on social media, we’re betting that the rule that will get the most pushback is the one slashing 1,500 words from reply briefs.
Why reply briefs? Those are the briefs filed by the appellant after the appellee has picked apart his or her arguments. Justices trying to decide which of two polar opposite analyses is correct often turn to the reply briefs, so seasoned advocates put a lot of time into them. Not only is it the “sole chance to respond to the appellee’s argument, you get the last word,” according to the book “Advanced Appellate Advocacy.”
Some of the commentary thus far:
➤➤ “I appreciate the court’s efforts to encourage succinct and streamlined briefs. But 4,500 words for a merits reply brief—wow, that is short!” —Nicole Saharsky, partner at Gibson, Dunn & Crutcher.
➤➤ “The reduction in the length of reply briefs is more drastic, proportionally, than the reduction in the length of opening briefs. Even a 1,000-word cut in reply briefs would have been proportionally more than the cut in opening briefs. I’m surprised that the court cut so deeply, but I assume that something in the Justices’ experience drove the change.” —Roy Englert Jr., partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber.
➤➤ “It’s reasonable for #SCOTUS to shorten the parties’ main briefs (2,000 words is a bit much tho). But most courts typically make reply briefs 1/2 the length of the principal brief, & it’s always been substantially less in #SCOTUS. Reply briefs there are a tight squeeze even now.” —John Elwood, partner at Vinson & Elkins, in a tweet.
➤➤ Kannon Shanmugam, who leads the Williams & Connolly appellate practice, wrote on Twitter:
The sum total of my thoughts on word limits: I’m happy to comply with whatever limits a court thinks is appropriate.https://t.co/bibr5ro6zZ
— Kannon Shanmugam (@KannonShanmugam) November 5, 2018
➤➤ “The cut from 15,000 to 13,000 for principal briefs makes sense, but from 6,000 to 4,500 on reply briefs will be brutal for #AppellateTwitter.” —Sean Marotta, senior associate at Hogan Lovells, in a tweet.
➤➤ “This is the highest court in the land, deciding just a few dozen of the most important cases each year, and it’s fussing about word counts?” —Peter Prows, managing partner at Briscoe Ivester & Bazel, in a tweet.