BIG FONT & fewer words


So I am back from my appellate conference and was going to blog on all the interesting things I learned (which I will anon), but this morning I received a tiny little notice from Cleaves in my email about recent changes in rules.  I clicked on the appellate rule change, read it, and what I found was a tad bit disconcerting.  This rule change goes into effect Nov. 1:

There was no request of any input from the bar before this issued.

As you can see, the new rule changes the font for briefs from 12 point to 14 point.  This in itself is not a bad thing.  Only some people were following the previous rule of only certain types of 12 point font, apparently not understanding which fonts were allowed and which weren't.  The Court also wasn't enforcing that rule.  So the result was that some people had less space than other people, because some followed the rule and some didn't, and that wasn't fair.  This rule is clear – 14 point in any font. 

So far so good, yes?  But while the font change is fine, unlike the federal rule, the Maine SJC retains a page limit, and the same one it had before, instead of a word count.  What this means is, as a practical matter, as of Nov. 1, you have far less space, around 10-25%, as I calculate.

The killer is going to be reply briefs.  I played with my fonts for a bit, and 20-page reply brief (the page limit) in times new roman 12 point (which was not the rule, but what many people submitted) converted to 27 pages in 14 font.  20 pages in 12 point times new roman font ended up around 15-16 pages in 14 point font.  If you followed the rules before, a 12 point bookman will convert to about 10% less in times new roman 14 point. 

I recently blogged on a proposed federal rule change, which would also shorten briefs, but based on the desire to return to the equivalent of the old page limits.  I suggested that it was not a good idea.  The federal court is vetting that proposal to the bar, and from my conference I have learned that apparently many other appellate practitioners agree with me that the change is not good.  But at least there will be a full notice and discussion of the pros and cons before anything happens.

Here, the SJC's rule makes the briefs even shorter than that proposed by the federal court.  Nor does the rule seek to retain the same length as before, the purported goal of the federal change.  Rather, this rule requires, sub silentio, briefs to be much shorter. 

Aside from a general view that reducing allowed brief length is not a good thing (particularly when oral argument has been cut, with some appeals not getting any argument and everyone else's time reduced from 20 minutes to 15), I also see some practical difficulties with this new rule, such as:

– because this was not publicly vetted, few people know about it.  They will get a surprise.  What happens when they file an oversized brief?  I don't think the SJC will do what the Seventh Circuit has said it might – stop reading when it reaches the proper length.  But if the Court sends it back, will it say you have X days to file a chopped one?  If it does, this just gives that party more time to keep working on its brief, giving that party an advantage for violating a rule.  It also throws off the date the opposing brief is due.  And if the date for the opponent's brief is not changed, then the opponent is further disadvantaged — it gets less time than normal to respond — all because its opponent violated the rule.  So the obedient side is penalized, and the already lengthy briefing time may be extended.

– it's hard to do a 20-page reply in a complicated case with lots of issues.  Doing a 15-16 page reply is even harder (and as I mentioned before, shortening replies I don't really think helps the court.)  So the rule change could increase the number of motions to enlarge the size of briefs.  You get very little time to put together a reply – 14 days.  But you can't really say you need more space until you see the appellee brief.  So these motions will have to be last minute, meaning that the Court has to rule immediately (more work for them, no ability for the other side to respond), or the parties won't know if the motion will be granted by the time the reply is due.  So the moving party has to pray the motion is granted, or that the court, if it denies the motion, at least gives it some extra time.  Or if it isn't willing to risk that, it must abandon the motion on the due date and file a truncated brief although the motion might have been granted.

– the font is changed for main text, but, unlike in the federal court, not for footnotes.  So people seeing that they have a length problem may just stuff arguments into footnotes.  This is not only generally a bad thing (and could spawn motions to strike etc.), but, as I learned at my conference, more and more judges and clerks are reading briefs on ipads, and guess what?  You can't read a footnote on an ipad.

Courts in general are going to a word count, not page limit.  This makes eminent sense.  It's easy enough to count words.  Why can't SJC?  Keep 14 font, but get rid of page limits and use the word count for the existing 50 and 20 pages in 12 point font.

Also, make the font the same size for footnotes and body to avoid getting cute (but please, not 14 font for everything without a decent word count number, or we will get even less space). 

And if the SJC really likes a page limit versus a word count, then at least change the page limit for replies to 25 pages from 20. 

But no one asked me.