Record on Appeal

How Word Processors Impact Word Count Limits in Appellate Briefing

Appellate courts throughout the country are moving toward word count limits as the determination of whether a brief complies with the length requirements of appellate rules.  

 The United States Supreme Court implemented word count limits in 2007.  For example, under United States Supreme Court Rule 33.1, a brief on the merits may be 15,000 words.  Under the Federal Rules of Appellate Procedure, a brief may not exceed 30 pages, or 14,000 words, or if the brief uses a monospaced face and contains no more than 1,300 lines of text.  See FRAP 32(a)(7)(B).  California intermediate appellate courts also have a similar 14,000 word count rule.  In the California Supreme Court, the word count limit is 8400 words, including footnotes, if the brief is prepared on a computer (versus a typewriter, yes – typewriter).  Recently, the Texas Supreme Court switched to word count limits – Merits briefs filed with the Court must be no more than 15,000 words.

 Here is a blog noting a case dismissed by the Seventh Circuit Court of Appeals for the failure to comply with the word count limits (and falsely certifying that the brief met the limits).

 Many practitioners prefer word counts because it does not penalize the writer for using larger font.  And, in this digital age of e-filing, reading larger font on a computer screen may be preferable to appellate court judges.

 But what impact does the use of word limits have from a practical perspective when drafting a brief?  One important impact is based on the type of word processor used. 

 The Supreme Court of Texas Blog has a post here describing the issue in the context of how word processors count the words – which may be different depending on which processor is used.  According to the post, the same 1 ½ pages of a brief was counted differently on various word processors.  For example, the count varied from 363 words in Microsoft Word (running on Mac OS X) to 380 words on WordPerfect X5 (running on Windows XP).

 Differences in counts arise, for example, in whether the word processor counts your record cite – CR.25 – as one or more words.  Word would count this as one word whereas WordPerfect would count it as two.

 One suggestion provided if you are filing your brief in a jurisdiction that uses word counts is to make sure your certificate of compliance includes the type of word processor used.

How to Make the Most of Being an Appellee

In the most recent issue of Litigation, the journal of the ABA’s Litigation Section, there is an interesting article entitled “Making the Best of Being an Appellee” that provides several practice pointers for parties to an appeal – if you are an appellee.

(1)  Tell your own story: in other words, don’t let the only version of the facts be those set forth by the appellant in the opening brief;

(2)  Don’t let the appellant set the stage: for example, rather than address the points on appeal in the exact same order as the appellant, put your strongest argument first;

(3)  The standard of review is usually in your favor: we’ve heard many appellate judges speak on the standard of review and its importance on appeal regardless of which side you’re on, but if you’re the appellee it is especially powerful since most standards offer deference to the lower court’s decision (i.e. the one in your favor);

(4)  Any valid reason to affirm will do: in other words, look for the alternative grounds under which the appellate court may affirm the judgment – and (as this blogger learned during her stint as a law clerk in two courts of appeals), sometimes the easiest avenue to affirm is the one the court will take;

(5)  Watch for waiver:  as the appellee, always ask whether the issues or arguments presented by the appellant have been waived on appeal for failure to raise them in the lower court;

(6)  No harm, no foul: this is also known as the harmless error standard – keep in mind that even if a trial court erred, if the error is harmless, the appellate court will affirm;

(7)  Take advantage of being second at oral argument: listen to the questions asked by the judges to your opponent to get an idea of what the court is concerned about or interested in, then address those points first when it’s your turn.

The article also includes a list of stats (compiled on the back cover of the issue), which confirm what all appellate attorneys know:  very few cases are reversed on appeal.  For example, in 2011 (the most recent year for which the stats were compiled for the article), the percentages of reversals in the twelve federal courts of appeals ranged from 5.2% to 15%.  The D.C. Circuit Court was responsible for the most reversals.  The range for the other eleven circuits topped at 11.8% (our own Ninth Circuit), with the low reversal rate coming from the Tenth Circuit.

Ninth Circuit Ranks Middle Among Circuits for Rate of Unpublished Opinions

The Volokhh Conspiracy recently had a post here on the rates of unpublished opinions in different federal circuit courts.  The post was based on a chart, available here, released by the United States Courts entitled: “U.S. Courts of Appeals—Types of Opinions or Orders Filed in Cases Terminated on the Merits After Oral Hearings or Submission on Briefs During the 12-Month Period Ending September 30, 2010.”

According to the chart, Circuit/Percentage of Opinions that are Unpublished for the relevant time period was:

4th Circuit/ 93.0%
3rd Circuit/ 89.8%
11th Circuit/ 89.6%
2nd Circuit/ 88.3%
5th Circuit/ 87.4%
9th Circuit/ 86.9%
6th Circuit/ 83.6%
10th Circuit/ 77.5%
8th Circuit/ 71.8%
1st Circuit/ 65.1%
DC Circuit/ 62.3%
7th Circuit/ 59.8%

At a 86.9% rate, the Ninth Circuit rated about mid-way through – but compared to the circuit court’s with lower rates of unpublished opinion still held a rather high rate.  In answering the question of why the rates vary, The Volokhh Conspiracy opined that “Published opinions take more time, so courts with smaller dockets should have more time to publish.”  A particular circuit court’s culture may also influence publication rates.

Should Appellate Briefs Cite to Wikipedia?

The ABA, here, recently picked up on an issue that has grown in debate among appellate practitioners:  Is the online source Wikipedia citable?  Or, even if it is, should we cite it?

The ABA’s article refers to a decision, available here, in February out of Kentucky in which the United States District Court judge (in a footnote) warns counsel that Wikipedia is not an acceptable source of legal citation.  After admonishing the attorney for an ineffective assistance of counsel argument the court viewed as being “cobbled” together “by cutting and pasting, without citation, from the Wikipedia website” – an act that itself was noted by the court as violating the rules of professional conduct – the court stated:

“. . . Wikipedia is not an acceptable source of legal authority in the United States District Courts.”

Or is it?

Much of the debate comes from the fact that Wikipedia may be modified by anyone.  However, a quick all-fed, all-state Westlaw search reveals that the term “Wikipedia” (albeit likely not all citations per se) appears is over 500 cases. 

The most recent opinion to cite to Wikipedia is out of the United States Court of Appeals for the Seventh Circuit.  In the criminal case United States v. Taylor, No. No. 10–2715, 2011 WL 1304918, * 2 (7th Cir. April 7, 2011), the court, in an opinion authored by Circuit Judge Posner, cites to the online source because the criminal statute at issue does not define the term “sexual activity.”  According to the court:

Wikipedia defines “sexual activity” very broadly; the Wikipedia entry for “Human Sexual Activity” says that “sexual activity ... includes conduct and activities which are intended to arouse the sexual interest of another, such as strategies to find or attract partners (mating and display behavior), and personal interactions between individuals, such as flirting and foreplay.” “Human Sexual Activity,” http:// en .wikipedia.org/wiki/Human_sexual_activity (visited April 1, 2011).

Wikipedia has not been cited to in any Hawaii case . . . yet. 

If a judge like Posner cites to Wikipedia, why shouldn’t appellate practitioners?  I suspect the debate is far from over.

Never Ignore the Appellate Court

If you are an attorney representing a party in an appeal, it should go without saying that you should never ignore the appellate court.

Case in point:  Reason Lee, James Washington, and Michael Moore v. Cook County, Illinois, Nos. 10-2013, 10-2042, & 10-3026 (7th Cir. March 22, 2011).

In an opinion by Chief Judge Easterbrook (and joined by Circuit Judges Cudahy and Posner), the attorney representing the appellants was reprimanded, fined by the court, and is described in no uncertain terms as having acted unprofessionally before the appellate court:

“The events recounted in this opinion show that Greco is a menace to his clients and a scofflaw with respect to appellate procedure.”

The attorney’s errors?

• Failure to explain his failure to file a timely appeal
• Failure to file a timely docketing statement until two weeks after the court’s order to show cause
• Ignoring order of the court to reply to a motion to consolidate until an order to show cause was issued
• Failure to file his brief on time
• Filing the brief 8 days after the deadline with a request for retroactive extension that itself was untimely
• Failure to provide a digital version of the brief as required by the circuit court’s rules
• Failure to return repeated calls from the court clerk’s office
• Failure to adequately respond to a third order to show cause related to digital version of brief
• Failure to adequately respond to a fourth order to show cause which also struck his client’s brief
• Failure to meet the deadline to become a member of the appellate court’s bar

And these were only the lawyer’s errors on appeal, the Seventh Circuit’s opinion also recounts the procedural errors – most importantly missed deadlines – at the trial court level which the court also considered in sanctioning the attorney and which led the court to state:

“The district court may wish to consider whether he should remain a member of its bar.  Would-be clients should consider how Greco has treated Lee, Washington, and Moore. . . . Greco must send Lee, Washington, and Moore copies of this opinion so that they may consider whether to file malpractice suits against him.”

The Seventh Circuit’s opinion is here.