Why Lawyers Object to Making Legal Briefs Briefer

By: Jacob Gershman [Wall Street Journal]

They say lawyers are the only people who can write a 50-page document and call it a brief. But that’s no longer a laughing matter.

Lawyers who argue cases before the nation’s most influential courts are protesting a plan by the federal judiciary to shrink the size of briefs filed in appellate litigation.

The proposal would pare back the word-count limit from 14,000 to a svelte 12,500. The idea has gotten a thumbs-down verdict from some lawyers who see it as a misguided attempt to curb their freedom of lengthy speech. But it won cheers from dozens of bleary-eyed appellate judges.

Judge Laurence Silberman, a 30-year veteran of the U.S. Court of Appeals for the District of Columbia Circuit, has had it with the pages and pages of irrelevant facts and marginal arguments. “My colleagues all believe the briefs are too long now,” he said. “You get numb.”

He and other appellate judges screen and review tens of thousands of appeals from trial courts a year—cases ranging from criminal convictions, to constitutional disputes to prisoner petitions.

For many attorneys, however, it is a frustrating struggle between concision and caution. Those objecting to the plan say they need more space to articulate their most compelling arguments, along with all their other ones.

“The problem is not knowing in advance what your audience is going to want and not being able to talk to them about it,” said federal appellate lawyer Peter Goldberger, co-chairman of the National Association of Criminal Defense Lawyers’ rules-of-procedure committee. “I sympathize, but not at the expense of any of my clients.”

The 12,500-limit (about 12.5 times as long as this article) was arrived at via a logic that only a lawyer could love.

Before the current limit was established in the 1990s, briefs were capped at 50 pages, a rule dating back to when attorneys used typewriters. According to a 2,600-word “short history” of the last rule change prepared by a University of Pennsylvania law professor, lawyers were skirting the page limit by squeezing the space between lines, letters and words. So they decided a word limit would better discourage verbiage.

 

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