The proposed change to the length of federal appellate briefs: judges v. lawyers

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If you read Howard Bashman's appellate blog, How Appealing (and honestly if you are a lawyer and read this blog you probably do) then you may have noticed that there is a proposal to change the default length of appellate briefs in federal court (from 14,000 words to 12,500 words). The comments closed on the evening of the 17th and are collected here.

I haven't read them all, but I've read most of them, and my general impression is that most lawyers who responded very much oppose the change. Meanwhile, a lot of the judges who responded (with the notable exception of Judge Easterbrook), support the change, and so does the Department of Justice, with qualifications.

It's an interesting difference. One cynical interpretation would be that most non-government lawyers get paid by the hour so they have an incentive to maximizing their workload, while government lawyers and judges get paid a salary that gives them an incentive to reduce their workload. But I am not inclined to think that is correct.

Rather, I notice that a recurring theme in the comments is the effect a new word limit would have on the number of arguments raised in a brief. If briefs are shorter, on the margin advocates have to omit arguments. Judges might favor this, figuring that the omitted arguments will usually be the weakest ones. But the advocates respond that they often can't tell what arguments the judges will find weak and strong, at least within the set of plausibly appealable issues.

In other words, judges and appellate lawyers have different priors about the brief-writing process because they have different kinds of information when they read a brief. Judges know which arguments have just wasted their time, but appellate lawyers don't know that when they write the brief, and they don't have a lawful way of finding out.

Anyway, if I'm right about all of that, I'm inclined to oppose the reduction. Those who write briefs know more about how the new rule will affect brief-writing, and that seems like an important factor here.