Upon Further Review

On March 27, the Pennsylvania Supreme Court officially approved a series of amendments to the Pennsylvania Rules of Appellate Procedure governing the size of appellate briefs. Most significantly, the new amendments replace the page limits currently applicable to appellate briefs with various maximum word-count limits.

The amendments also mandate an increase in the minimum font size for the text of appellate briefs, from 12-point to 14-point. These amendments will govern and apply to all appeals filed 60 or more days after March 27.

When the federal appellate rules were amended a number of years back to similarly replace page limits with word-count limits, those amendments did not significantly reduce the maximum permissible length of federal court appellate briefs. By contrast, the soon-to-be-effective amendments to Pennsylvania’s appellate rules will significantly reduce the maximum size of state court appellate briefs by approximately one-third in length.

Currently, the Pennsylvania Rules of Appellate Procedure allow a party to file an opening brief that consists of 70 pages of 12-point type. Such a brief can easily contain 21,000 words of text. The newly adopted amendments, however, will limit a party’s opening brief to 14,000 words, meaning that under the new rules an opening brief can only be two-thirds of the current maximum brief size.

To be sure, these changes are unlikely to affect appeals in relatively simple cases involving only a small number of issues. But in more complex cases involving more than just a few issues, the new appellate brief size limits may significantly affect either the depth of treatment that issues will receive or the number of issues that can persuasively be argued.

Indeed, in appeals of sufficient complexity, the new briefing limits may make it more important than ever for lawyers who do not frequently handle appeals to seek assistance from more experienced appellate practitioners. The previous 70-page limit made it possible for some trial lawyers to try to construct an appellate brief by simply cutting and pasting together briefs that the lawyers in the case had previously filed in the trial court. Although that method of "brief-writing" in my view was never particularly advisable, the new shorter brief size limits are likely to make it more important than ever that an appellate brief be newly created to serve that particular purpose to be as effective as possible.

One criticism of the new appellate brief size limits is not that they are too restrictive, but rather that they do not apply broadly enough. In the future, as in the past, no size limits will apply to petitions for allowance of appeal filed in the state Supreme Court to request that court’s discretionary review of a case. Although the Pennsylvania Rules of Appellate Procedure emphasize that petitions for allowance of appeal should be as short as possible, the absence of any maximum page or size limits frequently result in unnecessarily lengthy requests for state Supreme Court review.

By comparison, the U.S. Supreme Court has for many years had page limits and now word-count limits that apply to petitions for writ of certiorari requesting that court’s discretionary review of a case. If the highest court in the United States can effectively impose size limits on petitions requesting that court’s discretionary review of a case, then so can Pennsylvania’s highest court. And while I am at it, it may make sense for the Pennsylvania Supreme Court to expand the time for filing an answer in opposition to a petition for allowance of appeal from the current 14 days to 30 days. Currently, the party filing a petition for allowance of appeal has 30 days to prepare that filing, while the opposition must be prepared and filed within only 14 days.

The newly-adopted brief size limits for Pennsylvania state court appeals contain a safe-harbor provision that many attorneys filing federal appellate briefs found confusing back when the Federal Rules of Appellate Procedure were amended to include a similar provision. Simply stated, a party’s opening brief will meet the new size limits if the brief is either no longer than 30 pages or the brief contains no more than 14,000 words. What many understandably may find confusing is that a 30-page brief consisting of 14-point type will contain far fewer than 14,000 words.

All that the new rules actually say, however, is that if an opening brief does not exceed 30 pages, the brief will be assumed to comply with the word-count limit without any need for the filing party to attach a certificate stating the number of words that the brief actually contains. But if an opening brief is longer than 30 pages, it will be necessary to attach a certificate stating that the brief’s actual word count does not exceed 14,000 words. Depending on the font and the amount of single-spaced text, a 14,000-word brief in 14-point text can easily run from 50 to 65 pages long. Thus, the new rules do not impose a 30-page limit on opening briefs or a 15-page limit on reply briefs. They only create a safe-harbor for such smaller briefs, exempting them from the need to include a certificate of actual word count.

Although new rules mandating appellate briefs that are shorter (by imposing stricter size limits) and easier to read (by imposing larger font sizes) accomplish laudable goals in and of themselves, one can only hope that a long-term benefit of the newly-adopted brief size limit changes will be increased judicial efficiency in deciding appeals. The Pennsylvania Superior Court continues to be one of the hardest working intermediate appellate courts in the nation. And the state Supreme Court frequently takes more than a year from oral argument to announce rulings in many cases.

If having shorter (and, one hopes, better-quality) appellate briefs arguing fewer issues can ultimately have the effect of allowing Pennsylvania’s state appellate courts to decide cases more efficiently and more quickly, then the newly adopted changes to Pennsylvania’s Rules of Appellate Procedure will certainly prove quite valuable and worth whatever interim uncertainty lawyers may encounter while becoming accustomed to the new requirements. •

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached at 215- 830-1458 and via email at hjb@hjbashman.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.