A coalition of 18 law firms that specialize in Supreme Court advocacy told the court Friday that proposed rules aimed at trimming the length of briefs “would be harmful” to lawyers’ ability to “thoroughly and thoughtfully brief issues that are critical to the court’s resolution of the cases before it.”
The firms’ letter to Supreme Court Clerk Scott Harris added that “a high percentage of the Court’s merits cases are of great national importance and therefore warrant comprehensive briefing.”
The firms that joined in the effort, organized by Michael Kimberly of Mayer Brown, were: Akin Gump Strauss Hauer & Feld; MoloLamken; Arnold & Porter Kaye Scholer; Morrison & Foerster; Bursch Law; O’Melveny & Myers; Gibson, Dunn & Crutcher; Quinn, Emanuel, Urquhart & Sullivan; Gupta Wessler; Ropes & Gray; Jenner & Block; Sidley Austin; Kellogg, Hansen, Todd, Figel & Frederick; Vinson & Elkins; Wilmer Cutler Pickering Hale and Dorr; King & Spalding; Winston & Strawn; and Mayer Brown.
The proposed rules changes, promulgated in early November, called for cutting the word limit of briefs on the merits from 15,000 to 13,000 words. The firms’ letter said that in “average” cases, that reduction might be doable, but added, “It can be challenging in cases of even moderate complexity to recite the relevant facts, argue the issues raised, and include all required parts of the brief within the currently allotted 15,000 words.”
The letter continued, “Brief writers would often have to sacrifice readability and clarity to meet the word limit,” and that could result encouraging parties to “outsource important arguments to their supporting amici. This would give an unfair advantage to more experienced practitioners before the court; it would also unhelpfully shift focus from the parties’ briefs to non-party amicus briefs.”
But from the moment the proposed changes were made public, the most unpopular was the one trimming reply briefs—briefs filed by the appellant after the appellee and its amici have filed briefs—from 6,000 words to 4,500. “Reply briefs are a tight squeeze even now,” John Elwood, a Vinson & Elkins partner, said at the time.
The firms’ letter said such a cut is “cause for concern.” Shrinking “the already restrictive 6,000 word limit by an additional 25 percent … would mean that many significant arguments will necessarily go unaddressed, substantially reducing the reply’s utility.”
The firms also commented on the court’s proposal that amicus briefs be trimmed from 9,000 to 8,000 words, suggesting that “if reducing overall briefing is desirable, we submit that the court should further reduce the word limit for amicus briefs rather than reduce the word limit for party briefs. After all, if the court’s workload has increased since it last adjusted the word limits, that is in large part a result of the proliferation of amicus briefs.”
The letter the firms sent to the Supreme Court is posted below: