The Pennsylvania Supreme Court’s decision to change the limits on appellate briefs from a page-limit to a word-count limit is going to result in lawyers having to write shorter briefs on appeal, appellate practitioners told The Legal.
Some appellate practitioners said that having to write more efficiently for run-of-the-mill cases would be a good thing.
A good brief is a "brief brief," said criminal solo practitioner Burton A. Rose, who also teaches a course on appellate advocacy at Temple University’s Beasley School of Law.
Appellate court papers should be concise and direct, Rose added.
But appellate practitioners also emphasized that it would be important to have a release valve for less typical cases by the appellate courts authorizing counsel to write longer briefs in death-penalty litigation or cases that involve exceptionally complicated issues.
"For a run-of-the-mill case, I think it’s a great idea," said Carl A. Solano, co-chair of Schnader Harrison Segal & Lewis’ appellate practice group of the new rules. "For an extraordinary case, the court is going to need to be flexible and give extensions."
Solano classified extraordinary cases as including those that are very complicated, those that involve explicating legislative history, and those cases before the Supreme Court that involve substantial legal issues.
The court ordered the new limits to take effect in any new appeals starting 60 days after March 27.
The changes include:
• Principal briefs now must be no longer than 14,000 words long instead of 70 pages.
• Reply briefs now must now be no longer than 7,000 words long instead of 25 pages long.
• The statement of questions will no longer be limited but will count against the total word-count in the brief.
• Application for reargument must now be no longer than 3,000 words instead of 15 pages.
• The main text of briefs must now be printed in 14-point font and footnotes must now be printed in 12-point font.
• A principal brief that does not exceed 30 pages and a reply brief that does not exceed 15 pages shall be deemed to meet the requirements under the appellate rules, and briefs longer than that must be accompanied by a certification that the brief complies with the word-count limits.
Solano and Howard J. Bashman, a Willow Grove, Montgomery County, solo practitioner with an appellate practice, estimated that the new rule would result in principal briefs being at least one-third in length than under current practice.
Bashman said the new rule will affect appellate practice because attorneys must either reduce the number of issues they raise or reduce the amount of time they spend in a brief on each issue.
"A lot of highly capable appellate attorneys had been taking advantage of the entire space," Bashman said.
Bashman is a columnist for The Legal.
Charles "Chip" Becker, an appellate attorney for Kline & Specter in Philadelphia, said that the rules will align state-court appellate practice with federal practice. The federal system also has a 14,000-word limit for briefs.
Bashman suggested that the Pennsylvania appellate courts may end up facing a high volume of requests for exceptions to write longer briefs like the U.S. Court of Appeals for the Third Circuit did. The Third Circuit entered an order in January 2012 announcing that motions to file briefs over a limit of 14,000 words or 30 pages would be granted only selectively.
Civil practitioners are advised that if they raise many issues in their briefs that the assumption is that none of them have much merit, Becker said, so the new limits could improve appellate practice.
But Becker said there are different concerns in death-penalty cases because records are being prepared for federal habeas corpus cases and practitioners need to raise more issues rather than winnowing them down.
Both Becker and Rose said that the word limits reflect that the Superior Court is very busy and that shorter briefs could help the court be more efficient.
"Judges commonly emphasize the need for lawyers to write efficiently," Becker said.
One important change is requiring larger type in briefs, said Robert L. Byer, an appellate attorney with Duane Morris in Pittsburgh.
Some lawyers play games with the margins of their briefs and take other measures in order to not exceed the page limits, Byer said, but such actions makes their court papers less readable.
Such action "does a disservice to the case," Byer said. "Anything you do to facilitate a judge’s ability to read a brief and to understand that brief with ease enhances your case. It’s always been difficult for me to understand why so many lawyers submit briefs that are hard to read."