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.
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