TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

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IN THE MATTER OF: )

 )

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL )

RULES OF APPELLATE PROCEDURE )

AND OFFICIAL FORMS )

 )

JUDICIAL CONFERENCE ADVISORY )

COMMITTEE ON APPELLATE RULES )

Pages: 1 through 81

Place: Washington, D.C.

Date: April 1, 2015
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ADMINISTRATIVE OFFICE OF

THE U.S. COURTS

IN THE MATTER OF: )

 )

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL )

RULES OF APPELLATE PROCEDURE )

AND OFFICIAL FORMS )

 )

JUDICIAL CONFERENCE ADVISORY )

COMMITTEE ON APPELLATE RULES )

Mecham Center

Thurgood Marshall Federal

 Judiciary Building

One Columbus Circle, N.E.

Washington, D.C.

Wednesday,

April 1, 2015

The parties met, pursuant to the notice, at 

10:04 a.m.

ATTENDEES:

HON. STEVEN M. COLLOTON, Chair

HON. MICHAEL A. CHAGARES

HON. ALLISON H. EID (By Video Conference)

HON. PETER T. FAY (By Teleconference)

HON. RICHARD G. TARANTO

PROF. AMY CONEY BARRETT (By Video Conference)

PROF. CATHERINE T. STRUVE, Reporter

GREGORY G. GARRE, ESQ.

GREGORY G. KATSAS, ESQ.

DOUGLAS LETTER, ESQ.

KEVIN C. NEWSOM, ESQ. (By Teleconference)

CHARLES A. BIRD, ESQ., Witness

CYNTHIA KEELY TIMMS, ESQ., Witness

JAMES PEW, ESQ., Witness

DAVID H. TENNANT, ESQ., Witness
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I N D E X

PAGE

Testimony of Charles A. Bird, Esquire 5

American Academy of Appellate Lawyers

Testimony of Cynthia Keely Timms, Esquire, 15

Chair, Appellate Section of the State

Bar of Texas

Testimony of David H. Tennant, Esquire, 22

Co-Chair of the Appellate Rules Committee

of the American Bar Association's Council

of Appellate Lawyers

Testimony of James Pew, Esquire, Earthjustice 32
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1 P R O C E E D I N G S

2 (10:04 a.m.)

3 JUDGE COLLOTON: Good morning. This is a 

4 public hearing on proposed amendments to the Federal 

5 Rules of Appellate Procedure that were published in 

6 August 2014. The proposed amendments would affect 

7 Appellate Rules 4, 5, 21, 25, 26, 27, 28.1, 29, 32, 

8 35, and 40, and Forms 1, 5, 6, and new Form 7.

9 By subject matter, the proposed rules 

10 concern the following: 1) inmate filings, Rules 

11 4(C)(I) and 25(A)(ii)(c), along with Forms 1 and 5 and 

12 new Form 7; 2) tolling motions, Rule 4(A)(iv); 3) 

13 length limits, Rules 5, 21, 27, 28.1, 32, 35, and 40, 

14 and Form 6; 4) amicus filings in connection with 

15 rehearing petitions, Rule 29; and 5) the so-called 

16 three-day rule, Rule 26(C).

17 The advisory committee has received written 

18 comments on the proposed amendments and will give 

19 those comments careful consideration before 

20 determining how to proceed with proposed amendments. 

21 In addition, four witnesses have or four commenters 

22 have requested to testify about the proposed 

23 amendments, and that is the reason for our hearing 

24 today.

25 Nine of the 10 members of the advisory 

26 committee are participating in the hearing. Here in 
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1 Washington we have Judge Chagares, Judge Taranto, Mr. 

2 Katsas, the Solicitor General's representative, Mr. 

3 Letter, and I, Judge Colloton. Also here are the 

4 committee's reporter, Professor Struve, and the 

5 committee's liaison from the Committee on Rules of 

6 Practice and Procedure, Mr. Garre.

7 Participating by teleconference are advisory 

8 committee members Judge Fay and Mr. Newsom. 

9 Participating by video conference are advisory 

10 committee members Justice Eid and Professor Barrett. 

11 The tenth member of the committee, Mr. Katyal, is 

12 unavailable and he will receive a transcript of the 

13 proceedings.

14 As I understand it, each of the four 

15 witnesses wishes to testify concerning the rules 

16 governing length limits, and one witness also wishes 

17 to testify concerning the three-day rule. The Chair 

18 has allotted up to 15 minutes per witness for prepared 

19 testimony.

20 We will hear from the four witnesses in the 

21 order of their requests to testify and we will hear 

22 from each witness first. Then we will have time for 

23 any questions that may come from the members of the 

24 advisory committee and the others who are here at the 

25 table this morning.

26 So, with that, we will hear testimony first 
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1 from you, Mr. Bird.

2 MR. BIRD: Thank you, Judge Colloton. A 

3 central point of the American Academy's written 

4 comment is --

5 JUDGE COLLOTON: Is your -- make sure your 

6 microphone's on and the --

7 MR. BIRD: I see the green light.

8 JUDGE COLLOTON: All right. Now it's --

9 MALE VOICE: There you go.

10 JUDGE COLLOTON: That's better. Thank you.

11 MR. BIRD: Thank you. I'll begin again. 

12 Thank you, Judge Colloton. A central point of the 

13 American Academy's written comment is that complex 

14 cases require the existing 14,000 words. I'm very 

15 happy to have had that confirmed in part by the Sisk 

16 and Heise article which was published essentially at 

17 the time of our first attempt to convene this hearing.

18 I am also happy that over the time after the 

19 American Academy's comments we have had comments from 

20 across the nation in which experienced practitioners 

21 have anecdotally validated the same point, 

22 practitioners from California and Texas, and then 

23 essentially on the day that we were snowed out before, 

24 a series of comments from the appellate departments of 

25 the elite firms here in Washington, D.C., whose 

26 practices are characterized by lots of Supreme Court 
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1 opinions, many Federal Circuit opinions, and D.C. 

2 Circuit appearances as well.

3 I also take the Solicitor General's comments 

4 at the core to validate the same point. That is, when 

5 the Solicitor General says that in complex cases

6 12,500 words just would not be enough fairly to 

7 present the government's position, the Solicitor 

8 General is saying the same thing we are.

9 But the Solicitor General offers a different 

10 solution. The Solicitor General's solution is to 

11 adopt yet another rule which would essentially 

12 overrule or preempt all Circuit rules and say, well, 

13 we never actually grant additional space and rather 

14 institute a principle of liberal construction based on 

15 a case-by-case analysis of requests to file over 

16 length briefs, a different solution, by the way, for 

17 which I have no enthusiasm since I do not represent 

18 the federal government, and I do not think private 

19 practitioners would be likely to get the same liberal 

20 construction or deference in a process of asking for a 

21 discretionary addition to the length of a brief.

22 The panel has both the Academy's written 

23 comments and my outline. Just as with an appellate 

24 argument, I certainly do not propose to read my 

25 outline or cover it word for word. I hope to be 

26 somewhat spontaneous in discussing the issue before us 
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1 today.

2 One of my real hopes behind requesting 

3 personal appearance for this is that the panel will 

4 have questions when we are all finished. All of us 

5 who will testify today are in one way or another 

6 engaged in the practice of law for private parties, 

7 either in the law firm context or an organizational 

8 context. We are the people who would be affected by 

9 these rules, and there's a lot we can say about the 

10 day-to-day consequences of reducing the brief limits.

11 I don't propose to tell war stories, but 

12 what I would like to go to is what obviously the 

13 American Academy and most of the commentators have 

14 considered to be what must be the real reason for 

15 proposing this rule. It can't be just because there 

16 was an administrative mistake 14 years ago. There 

17 must be a concern by someone that briefs are too long 

18 and it would be nice to shorten them.

19 As a very broad summary, I would say the 

20 American Academy's comments and certainly our 

21 discussions anecdotally about what we should be saying 

22 here today recognize that the Federal Courts of Appeal 

23 are entitled to better lawyers and are entitled to 

24 better briefs. The question to us is whether we can 

25 help you get there and, if so, how.

26 We plainly think from our written comments 
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1 that adopting a one size fits all rule, shortening 

2 briefs by 10 percent, 1,500 words or whatever you call 

3 it, is not a solution.

4 But we, as much as speaking from the 

5 perspective from time to time of the appellee, we are 

6 as much infected as the Courts with lawyers who can't 

7 write, with lawyers who don't understand how to 

8 advocate in Appellate Courts, with lawyers who might 

9 have had a pretty good idea how to advocate in 

10 Appellate Courts 20 years ago but haven't yet used a 

11 computer and are still typing their briefs on 

12 Underwoods, do not understand the ongoing development 

13 of technology and how that affects how Judges read 

14 briefs and where Judges read briefs, and even to the 

15 point of how they scan pages, and have never thought 

16 about that might affect how we write briefs.

17 Also, many of those lawyers have great 

18 difficulty deselecting issues and arguments. That is 

19 a process that takes great courage because we don't 

20 know when we write the brief exactly what the Court 

21 will consider to be the most critical issue or the 

22 most critical cluster of issues. Wish we did, but we 

23 don't get to have a conference with you in advance to 

24 try to figure that out.

25 So it takes a great deal of experience and a 

26 lot of courage to tell a client even though your trial 
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1 lawyer did a great job of framing this in the District 

2 Court, we really shouldn't argue it in the Court of 

3 Appeal because the standard of review is against us 

4 and we need to stick with this or that legal issue.

5 And then we have to deal with clients who 

6 think they know something about Appellate Courts and 

7 appellate briefing and who really don't and who will 

8 take what obviously all of us would consider to be a 

9 beautifully written draft and tell us to drop a 

10 footnote in it, add an argument, raise an issue that 

11 wasn't perfected in the District Court, and generally 

12 cause havoc with the production of a brief that we 

13 think would be a winner for that client and would be 

14 useful to you.

15 We have to deal with all of those things, 

16 and we think there are a number of things that can be 

17 done about them, and we would like to have this be a 

18 cooperative process between bench and bar rather than 

19 bench versus bar over brief length.

20 I also recognize in saying that that many of 

21 the things that are in my outline and I will mention 

22 briefly today are things that can't be done by this 

23 rule committee, so only to a limited extent do I 

24 envision that rules as such will improve the quality 

25 of advocacy in the Court of Appeal.

26 I think you've seen many comments here that 
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1 a rule shortening a brief will simply get you the same 

2 bad brief, only 1,500 words less. And I would like to 

3 think that most appellate Judges, having read 12,500 

4 words into an incomprehensible brief, put it down and 

5 find some other way to understand the case rather than 

6 slogging through the last 1,500 words.

7 But in any event, one thing I will mention 

8 that's come up amongst some of us who testify, and 

9 it's a very active idea in a number of Courts, is a 

10 concept for training lawyers to write better briefs 

11 when they're writing briefs.

12 One of the great problems with continuing 

13 legal education is we can put on marvelous programs 

14 for people and appellate practitioners come to it and 

15 experienced practitioners may get two or three great 

16 ideas in the course of five hours of seminar, and the 

17 people who are writing you lousy briefs aren't there.

18 So what would be wrong with having on each 

19 Court's website the equivalent of YouTube, what I 

20 personally call just in time training, so that a 

21 lawyer who is embarking on writing an appellant's 

22 opening brief can click a five-minute, seven-minute, 

23 no more than 10-minute -- they probably have short 

24 attention spans -- YouTube that will get to the 

25 essentials of how to write a decent brief, including 

26 the notion that every brief has a right length and 
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1 that right length is as short as you can possibly make 

2 it, while being candid to the Court about the facts, 

3 while being candid to the Court about where and how an 

4 issue was preserved, while being candid to the Court 

5 about the standard of review, and while developing 

6 your argument with cases cited that mean what you say 

7 they mean and that are discussed enough so the Court 

8 can tell that you understand and are advocating for 

9 the holding of the case, not just the stray piece of 

10 language that you put in a parenthetical after the 

11 citation.

12 I think that could be very useful, and it's 

13 the kind of thing in which practitioners can be very 

14 helpful to the Court because we can do those videos 

15 from our experience. Everybody in this room has 

16 taught that kind of seminar and could condense that 

17 kind of work circuit by circuit into something of 

18 appropriate length.

19 I also think that the Courts should consider 

20 certifying federal appellate specialists as the states 

21 do. Who should actually do that? Well, we have 

22 Circuit Bar associations in the Third, Fifth, Seventh, 

23 Eighth, and Federal Circuits. Those are organizations 

24 that are capable of being invented in other Circuits 

25 and upgraded to an official status in the Circuits 

26 where they already exist. They are capable of taking 
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1 the certification tests that are used in states now to 

2 certify specialists, modifying them to take into 

3 account federal practice and procedure.

4 And certifying appellate specialists. Why 

5 do that? Certification is one indication to a client 

6 looking for an appellate lawyer that somebody knows 

7 where the courthouse is, knows what an appellate brief 

8 looks like, actually can follow the rules and produce 

9 a basic quality work product.

10 It's not a top specialist certification, but 

11 it is some guarantee to the Court that, to the client 

12 first, that a person potentially to be hired as an 

13 appellate lawyer knows what he or she is doing.

14 It is also a piece of leverage if someone 

15 who is certified performs defectively because 

16 certification is something that could be withdrawn if 

17 a person persistently behaves in inappropriate ways, 

18 including filing briefs out of conformance with the 

19 rule and the like. This committee can't do that, but 

20 it's the kind of dialogue I think is appropriate for 

21 how you get both better lawyers and better briefs.

22 There are other things that are discussed in 

23 my outline that I think I'll skip here to make sure 

24 that I don't run over time and everybody else gets 

25 time, but there are things that the Courts can do. I 

26 think having more oral arguments in counseled cases 
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1 gives lawyers feedback about their briefs.

2 I'm not suggesting that oral argument should 

3 be a time for a Judge to lean back in the chair and 

4 discuss better briefing strategies, but simply by 

5 going to a day of argument, including one in which I 

6 have briefed the case, I always learn something about 

7 appellate practice.

8 And my number of arguments is well in three 

9 figures. I learn from the bench every time that I 

10 interact with you when you are doing your job. And 

11 any decent lawyer who expects to do a second appeal

12 will do the same thing simply by showing up and paying 

13 attention at oral argument.

14 I want to get into one final point that's at 

15 the end of my outline, the subject of fluctuating 

16 limits for appellate briefs. We have had active front 

17 end case management in the United States District 

18 Courts since the '70s and it was revolutionized by the 

19 role of Magistrate Judges.

20 If there really is a problem with length of 

21 briefs, with quality of briefing, with how cases are 

22 managed in the Court of Appeal to get to the point of 

23 going to a panel in a comprehensible way, why don't we 

24 at least consider some kind of front end management in 

25 the Appellate Courts?

26 Courts that have Circuit mediation programs 
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1 do this to some extent de facto because the Circuit 

2 mediators are great educators to people about issues 

3 that may work and may not work simply by discussing 

4 the cases.

5 I'm not suggesting a mediator should become, 

6 in addition, a case manager should become someone who 

7 decides that your case is of the most complex quality 

8 and even 14,000 words for your brief may not be 

9 enough, whereas your case is a very simple potential 

10 error by the District Court in a one issue motion to 

11 dismiss. And on a case-by-case basis we could even 

12 brief that, we think anybody could brief that, in 

13 7,000 words.

14 But I think there are processes that could 

15 be experimented with Circuit by Circuit for front end 

16 case management that would give you the equivalent of 

17 this rule, but do it on a sensitive case-by-case basis 

18 instead of a one size fits all, which I think in the 

19 end will just cause a great deal of friction.

20 Thank you very much for your time. I hope 

21 there are questions at the end.

22 JUDGE COLLOTON: Thank you, Mr. Bird. 

23 Before we go to the next witness, I neglected to 

24 introduce Rebecca Womeldorf and Bridget Healy from the 

25 rules committee support office who are also attending 

26 here at the table this morning.
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1 Ms. Timms, we'll hear from you.

2 MS. TIMMS: Thank you. Is my mic on?

3 MALE VOICE: Not yet.

4 MS. TIMMS: Thank you. My name is Cynthia

5 Timms and I'm here on behalf of the appellate section 

6 of the State Bar of Texas. This issue came to our 

7 attention last fall, and as chair of the appellate 

8 section this year I wanted to look into it, and so I 

9 started with this committee's report or memorandum 

10 that it filed with its suggested rule changes. I also 

11 then read through the minutes of the April 2014 

12 meeting and felt that I had a decent grasp based on 

13 those things of why we were doing this.

14 What this committee said was that while the 

15 estimate used in 1998 of 26 lines per page appeared to 

16 be sound, the research had indicated that the estimate 

17 of 280 words per page is too high. It then also said 

18 a study of briefs filed under the pre-1998 rules shows 

19 that 250 words per page is closer to the mark. And 

20 then they attached the memo.

21 I became curious about that and so I 

22 happened to have an old brief that we had worked on 

23 very, very hard back in 1996 and I took that brief, 

24 turned it into a .pdf, converted it to Word, and 

25 counted the words. And there were 281 words per page, 

26 which piqued my interest, and so I started working 
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1 with other members of the appellate section of the 

2 State Bar to gather as many briefs as I could to study 

3 how many words were fitted, fit in per page.

4 And I will tell you that was a difficult 

5 process because I was looking for briefs that were a 

6 minimum of 17 years old. Essentially you have to try 

7 to reach out, identify the hoarders that you know, 

8 contact them and see what they can do for you.

9 I was able to gather a number of briefs, 

10 about 16, 17, 18, something like that. They're listed 

11 out in Exhibit A. I will admit that I was a partial 

12 hoarder also. But my study was interesting because 

13 there was not one brief that I studied that was as low 

14 as 250 words per page.

15 If we all recall, the font size could be 

16 much smaller then. It could go down to 11 points on 

17 the font. The smallest font that anyone used in these 

18 briefs was 11.5 and it went up to 13 point font. But 

19 the number of words per page went up to, went as high 

20 as 336 words per page. The lowest was 263 words per 

21 page. The overall average exceeded 290 words per 

22 page.

23 I will tell this group I used every brief 

24 that I could get my hands on except for one in which 

25 that particular brief author had inserted very odd 

26 page breaks that would make a word-per-page analysis 
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1 extremely difficult without breaking the brief down 

2 into various sections.

3 We also had access -- because Texas only 

4 recently had gone to a Word system within its State 

5 Court system, and that happened in 2012. And so at 

6 the time that we made that conversion we were at 13 

7 point font and 50 pages. And so, as Exhibit B to my 

8 study, you will see that, or Exhibit B to my paper, 

9 you will see that study, and it is a much more 

10 thorough study because it was contemporaneous with the 

11 briefs that were being produced at the time.

12 It's a study of 63 briefs. They mostly 

13 studied the shorter briefs that were being filed. We 

14 have a petition for review system, which is like a 

15 petition for certiorari system, which your initial

16 brief is fairly short. It also included motions for 

17 rehearing, that type of thing. It studied 63 briefs. 

18 It also, even though the 13 point font was used in all 

19 those briefs, the average exceeded 290 words per page.

20 There were only four briefs out of the 63 

21 that had fewer than 250 words per page. There were 28 

22 that exceeded 300 words per page. And ultimately the 

23 Texas Supreme Court decided to adopt a conversion rate 

24 of 300 words per page when it converted the page 

25 system to the Word system.

26 I want to share with you a recent experience 
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1 that we had at my law firm, and this was on a motion 

2 that had to be filed in the Fifth Circuit. So 

3 obviously we're under a 14 point system now, 20 pages. 

4 And the case was rather intense in terms of there's a 

5 lot at stake. It was an injunction that was issued by 

6 the Trial Court in which the Trial Court stayed only a 

7 tiny portion of the injunction. The appellant was 

8 naturally moving for a stay of the rest of the 

9 injunction. It was a two-week trial, antitrust, 

10 Lanham Act, injunction, high damages.

11 And so we decided to oppose the stay of the 

12 remaining portion of the injunction, which was most of 

13 it, and we knew that we had a very high burden because 

14 I would think if I were on the Court that what I would 

15 tend to do is say let's expedite, but let's go ahead 

16 and stay this injunction.

17 It was an affirmative injunction. It forced 

18 people to go out and do things and write letters and 

19 post things on their website that would not normally 

20 be there. It was not an injunction that just kept 

21 things as they were.

22 So we worked very hard to try to tell the 

23 entirety of our story as best as we could in those 20 

24 pages, the background of the case, the facts, and 

25 everything else. And we used every ounce, every 

26 little square bit of those 20 pages to tell our story. 
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1 Just as an aside, that particular document, we fit 290 

2 words per page.

3 The point is this. It worked. The Fifth 

4 Circuit refused to stay the injunction. Had we had 

5 less space, less words available to us, I don't think 

6 we would have pulled it off. We were surprised as is 

7 that we did pull it off. So that's just a little bit 

8 of a war story here for you to think about.

9 I want to go back to your original 

10 memorandum because I'm a little bit bothered by what 

11 might have become a process problem. And what struck 

12 me, yesterday and last night I read every comment that 

13 was filed with this brief, and the comments almost 

14 seemed to accept the fact that this really cannot be 

15 based on the 1993 study that was done, that there has 

16 to be something else at issue, that it must be because 

17 the Judges perceived briefs as being poorly written, 

18 too long, improper, bad advocacy, that that must be 

19 the source of the problem. And that's what most of 

20 the comments addressed. It made me feel that our 

21 comments had almost become quaint and that we had 

22 taken the report at its word and had studied that.

23 But it seems to me that what the report did, 

24 what this committee did in its report was it acted 

25 entirely properly in a general sense in that it 

26 identified a problem and then it identified a 
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1 solution. The problem was that maybe we were wrong in 

2 the initial conversion rate. What's the solution? 

3 Let's adjust it.

4 But there also seems to be in the comments 

5 generally that there's an acceptance that that's not 

6 what the problem was, that there's a general 

7 acceptance that, yeah, briefs might have been longer 

8 than 250 words per page back then. But the debate has 

9 become about the solution and other possible reasons 

10 to have the solution and what the solution might 

11 actually be addressing.

12 And I think that's where we hit the process 

13 problem. I think that it is far better once we 

14 realize that the original problem may have been 

15 something else, maybe that what we identified as the 

16 problem was not really the problem, to just stop and 

17 just go back to the outset and say what is the 

18 problem, what are the problems that we are trying to 

19 address.

20 We may come back to this solution someday, 

21 but let's go back to the problem, let's identify the 

22 problem, let's identify all the possible solutions, 

23 and then this committee needs to ask itself which of 

24 the solutions are actually rule-based. Maybe there 

25 are other solutions that are not rule-based, and I 

26 think that Mr. Bird was talking about some of those.
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1 But that way I think the process will work a 

2 lot better. I realize that at the end of the day what 

3 we're doing is we're issuing rules. People are going 

4 to have to live by rules. That's all it is. But I 

5 think that on every single process that occurs, if the 

6 process is worked right, you'll have buy in and people 

7 will be a lot happier living even with rules that 

8 maybe they don't like.

9 And so those are my comments. I'm turning 

10 back in some extra time so we can move forward. Thank 

11 you.

12 JUDGE COLLOTON: Very well. Thank you for 

13 your testimony.

14 Mr. Tennant, we'll hear from you next.

15 MR. TENNANT: Thank you, Judge Colloton. I 

16 assume my -- yes, it is working. Good morning. It's 

17 my honor to be appearing before this advisory 

18 committee on behalf of the Council of Appellate 

19 Lawyers within the Judicial Division of the American 

20 Bar Association. And with me today is Deena Jo 

21 Schneider, who is co-chair with me of the Appellate 

22 Rules Committee of the Council of Appellate Lawyers.

23 My comments, I'd like to basically cover 

24 three different areas. One is a little bit of a view 

25 from the trenches. I mean, we all are in the trenches 

26 in one respect or another, but from the perspective as 
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1 chair of my firm's appellate team and co-chair of our 

2 Indian law and gaming team and how those two things

3 come together, talk a little bit about why anecdotal 

4 experience that I will tell you about first maybe 

5 isn't the best guide for figuring out what to do here, 

6 and then wrap up with a discussion about what would 

7 the world look like with reduced word count and 

8 subject to motion practice to expand the length of 

9 briefs.

10 So just a little bit on the collaborative 

11 side of the Council of Appellate Lawyers and what we 

12 do with the Judges. We are the only national bench 

13 Bar appellate organization in the country and we work 

14 closely with federal Judges and State Court Judges in 

15 doing CLE programming and putting on the Appellate 

16 Judges Education Institute in the fall every year.

17 I would support certainly Mr. Bird's 

18 comments and those of the American Academy of 

19 Appellate Lawyers with respect to the opportunities 

20 for there to be further collaboration on improving 

21 brief writing for lawyers appearing in our Federal 

22 Circuit Courts.

23 So what does it mean to kind of have a 

24 practice that is in Indian law and appellate law? It 

25 means four trips to the U.S. Supreme Court, only one 

26 of which, because it's 40 years of practice, only one 
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1 of which I had the honor to be part of. And in terms 

2 of that practice, 40 years of interpreting the 18th 

3 century treaties, going to the National Archives to 

4 look at underlying documents, presenting everything by 

5 way of motion, and never a trial in 40 years. So 

6 that's kind of one end of the spectrum.

7 And not surprisingly, those kinds of cases 

8 dealing with constitutional issues, what does it mean 

9 to be a sovereign, how do regulatory issues work out, 

10 how do ancient Indian land claims pan out in today's 

11 world, all of those are highly complex matters that 

12 take up a lot of pages, and Courts are very receptive 

13 to expanding to allow the necessary briefing to occur 

14 there.

15 So that's kind of one end of the spectrum 

16 where you're really looking at robust appellate 

17 briefing. You have every time up and down, the case 

18 history, the procedural history, kind of its 

19 accretion, and you get more and more and more, and 

20 every time there's just kind of another layer of 

21 complication that you have to explain on the way up 

22 and then on the way back down.

23 My most recent appeal in the Second Circuit, 

24 the arguing Bay 4, very different. It's a person in 

25 my firm who tried a one-week long employment 

26 discrimination case. Very little in the way of motion 
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1 practice, although there were some pretrial motions. 

2 But it's really, you know, a trial record, and with an 

3 appellant -- our client was given a defense verdict, a 

4 no cause verdict, so the plaintiff's lawyer is 

5 appealing and submitted actually an undersized brief 

6 filled with seven partially articulated grounds for 

7 reversal, with a almost random selection of standards 

8 of review and applying none of them to any of the 

9 arguments.

10 So, as the appellee, that kind of brief 

11 requires almost a law clerk-like response where you're 

12 helping the Court. You're trying to untangle the 

13 arguments, you're trying to actually give them some 

14 kind of context, and to actually do the standard of 

15 review analysis that was missing in the appellant's 

16 opening brief.

17 In order to do that I came up to 13,997 

18 words, you know. And it was, you know, cutting and 

19 just trying to get it there. And again, one of the 

20 issues was the plaintiff's counsel attacked 

21 essentially the District Court Judge, saying that they 

22 were deprived of a fair trial, so I was trying to 

23 support the good name of the District Court Judge and 

24 trying to -- when people can pick out, cherry pick, 

25 well, he said these things in a sidebar conference 

26 and, you realize, well, that's after the plaintiff's 
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1 lawyer was reprimanded 10 different times on the same 

2 issue and persisted in that lawyer's conduct.

3 So, you know, the comment is it's easy to 

4 tell a lie or, you know, it's hard to disprove it or, 

5 you know, the idea that there are essentially crimes 

6 of omission as apart to commission where people are 

7 leaving out critical facts, leaving out critical 

8 cases. And basically I've been there as a law clerk, 

9 having to do all the running to make up for what 

10 wasn't in the papers.

11 And I think it's our job as lawyers in 

12 private practice representing fee paying clients to 

13 make sure that we are presenting the best case that we 

14 can to the Court, fully understanding that less is 

15 more in most cases, but understanding that we can be a 

16 great service to the Court by basically doing the 

17 fixer, fixing up of whatever is defective in the other 

18 party's brief.

19 And it really does take two to tango to have 

20 a kind of efficient briefing. I have not had the 

21 pleasure of working with Mr. Bird or Ms. Timms on the 

22 other side of the case, but I'm sure we would easily 

23 fit within, you know, the kinds of parameters that are 

24 available for word count in whatever Court because we 

25 would be fully understanding of the need that Judges 

26 will often turn off, right, if you write too long. 
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1 It's kind of self-policing, that you don't want to 

2 write more than you think is necessary.

3 So, I mean, I think there's a lot that is 

4 just kind of not broken about the process, and 

5 actually, given the room, the 14,000 word cap room 

6 that presently exists, we can do a lot to actually 

7 facilitate the efficient resolution of appeals with 

8 counsel who maybe don't have the experience and aren't 

9 in a position to do that themselves.

10 Okay. So that's a whole bunch of anecdotal 

11 evidence from me that I'm now going to say, well, that 

12 only makes sense so much because we each have our own 

13 experience and maybe it squares with that or not. I 

14 think it's fair to say that word count, the length of 

15 a brief is both, you know, it's a underinclusive and 

16 overinclusive kind of limit because you can have 

17 repetitive, poorly written briefs that are 10,000 

18 words or 5,000 words. It all depends what is this 

19 brief covering and do you need the words, do you need 

20 the space to actually address it. So I think it's 

21 just kind of a, it's a very crude measure of some type 

22 of quality of briefing.

23 I would point out that former Chief Judge 

24 Dennis Jacobs from the Second Circuit, he was on an 

25 appellate CLE program that I happened to be the 

26 program co-chair. And Judge Jacobs' comment when we 
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1 were talking about, you know, should this word count 

2 rule be changed, his comment was he never complained 

3 about the length of an interesting brief. He's a 

4 terrific brief writer who's in private practice, and 

5 he holds himself out as being really a consummate 

6 opinion writer.

7 And at the end of the day, is the brief 

8 well-written, conveying the points that need to be 

9 conveyed, and otherwise kind of hitting its mark. And 

10 word count, it's not quite arbitrary, but it's 

11 certainly a very rough measure of anything about 

12 quality. Of course the Heise and Sisk study suggests 

13 at least for appellants there is a strong causal 

14 correlation between the length of an appellant's 

15 opening brief and the possibility of a reversal.

16 And that brings me to what else can we be 

17 doing in the way of empirical studies to take us out 

18 of the context of one talking head or another talking, 

19 you know, about their experience. And I think that 

20 there's actually a lot that we can look at. We 

21 respectfully suggest that a study could be undertaken 

22 of actual practices of granting motions for oversized 

23 briefs. What is the current practice in the different 

24 Circuits? How frequently are motions being made? How 

25 frequently are they being granted? And what kinds of 

26 judgments are being made about the need for oversized 
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1 briefs in that context?

2 The I guess complaints about overly prolix 

3 briefs is that are there any patterns? Are they 

4 coming in criminal cases? Are they coming in civil 

5 cases? Are they immigration cases? Are they 

6 employment discrimination cases? Are they coming out 

7 of trials? Are they coming out of motion practice?

8 It's basically, you know, areas where 

9 there's settled law. Are these lengthy briefs coming 

10 kind of in what I call cookie cutter appeals and 

11 people just aren't understanding that there's a whole 

12 body of law that is basically determinative and that 

13 they're resulting in summary opinions where basically 

14 the Court is saying there's really nothing here to be 

15 decided, this was all kind of right down the middle, 

16 decide, you know, within existing precedent.

17 Are the briefs that are deemed kind of 

18 overly long, are they in multiparty cases? Are they 

19 in where there are too many issues being raised? Is 

20 it because lawyers at that kind of fundamental framing 

21 point are just throwing in too many issues and that 

22 leads them to actually generate a brief that is too 

23 long?

24 You know, and I think everybody who has 

25 served as a law clerk or as a Judge and read lots of 

26 briefs have read briefs that make you snooze or make 
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1 you angry or make you whatever. You're not persuaded, 

2 and there are a lot of things that can do that.

3 And from my clerking days, what I remember 

4 most are the ones where I had to go do the legal 

5 research and go back to the record because people 

6 hadn't done their job. They hadn't actually given the 

7 Court the facts and the law that were needed in order 

8 to decide the issue.

9 And so maybe I err on the side of wanting to 

10 be more complete, but I think there's a lot to be said 

11 for making a presentation that is reasonably complete, 

12 understanding that at the end of the day, if you err 

13 on the side of overcompletion, busy Judges will punish 

14 you by putting your brief down before they get to the 

15 end of it. But it really is, I think, a judgment that 

16 experienced appellate counsel are in a position to 

17 make, subject to all of the real world practical 

18 impacts and forces that Mr. Bird was talking about 

19 with clients who make all kinds of real world demands, 

20 and you're just, you're trying to do the best.

21 And I think it's significant that it's 

22 almost universal. I think the comments are almost 

23 universal from lawyers in private practice who have 

24 fee paying clients that this is, you know, important 

25 to have the room, the flexibility to be able to go to 

26 14,000 words without having to make a motion.
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1 And that brings me to the whole issue of 

2 what would it be like in a world where there's 12,500 

3 words as the limitation and you have to make a motion 

4 every time you want to go beyond that. Well, of 

5 course it potentially adds costs, a motion practice, 

6 it adds uncertainty, and it's injecting inefficiency 

7 into the process.

8 I mean, if you're trying to look at it from 

9 a process standpoint, you would never want to go from 

10 a certain 14,000 to a 12,500 uncertain rule in terms 

11 of saving resources of the parties and the Court. But 

12 more than that, it's kind of, I don't know if it's the 

13 case in all Federal Circuits, but, you know, by local 

14 rule I think most of the Circuits, I believe the Fifth 

15 Circuit anyway, requires you to present your proposed 

16 oversized brief two weeks before the filing date.

17 Now just imagine you're in the Fifth Circuit 

18 dealing with the governor as your client, the attorney 

19 general of the state as your client, and the solicitor 

20 general of the State of Texas, and you're having to 

21 get everybody to sign off on that brief two weeks 

22 before the due date. You're talking having to get 

23 your brief done a month, six weeks before the due 

24 date. I mean, there are just those kinds of real 

25 world timelines that make those kinds of local rule 

26 restrictions or requirements for almost a prefiling 
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1 motion to go over a very challenging rule to meet.

2 I would just conclude by saying that we've 

3 had a, I've counted 15, 16, 17 years, something of 

4 real world experience with the 14,000 word limit, and 

5 we believe it's working well, isn't broken, and should 

6 be maintained. And if this committee were inclined to 

7 look at it further, it would be to do the kind of 

8 empirical study that gets past anecdotal views of what 

9 may or may not be an over-length brief. Thank you.

10 JUDGE COLLOTON: Thank you, Mr. Tennant.

11 Mr. Pew, we'll hear from you if you can get 

12 that one to work.

13 MR. PEW: Well, thanks very much for the 

14 chance to testify. I am the one person, I think, who 

15 submitted testimony both on the word limits and the 

16 three-day rule, but in the interest of being brief I 

17 will just address the brief limits. And of course I'm 

18 happy to answer questions on the three-day rule as 

19 well.

20 Just to introduce myself a little bit, and 

21 my experience I think is relevant to this question, 

22 most of my practice is in the D.C. Circuit. I've 

23 practiced predominantly in the D.C. Circuit for the 

24 last 17 years. My law firm has a number of cases in 

25 Circuits all over the country, but my particular work 

26 deals with a particular kind of case that goes to the 
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1 D.C. Circuit, which is judicial review of a federal 

2 agency action.

3 And a number of federal statutes send review 

4 cases directly to the D.C. Circuit or to other Courts 

5 of Appeals, and so these are actually the -- in these

6 cases, the Court of Appeals is the first and usually 

7 the only Court that hears the case. And I think that, 

8 you know, these are unusual for a number of reasons.

9 One aspect of my work in the D.C. Circuit 

10 that I think is relevant is that a lot of these 

11 judicial review cases are multiparty cases. So the 

12 government rule might be challenged both by industry 

13 petitioners who think the rule is too stringent and by 

14 environmental petitioners who think the rule is 

15 insufficiently stringent.

16 And often in most cases what the D.C. 

17 Circuit does is shorten the word lengths already from 

18 14,000 words to 12,500 or even 10,000 words, and so I 

19 have a lot of experience in dealing with shorter word 

20 limits and what effect that has on the cases. And the 

21 effect it has in my experience is to force petitioners 

22 to drop valid claims or take the risk of trying to 

23 brief those valid claims in such a summary brief 

24 format that they risk either losing or making bad law 

25 or both.

26 Now part of what makes these cases different 
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1 is that judicial review cases involve, will result in 

2 a decision that does not just affect the litigants. 

3 Now obviously any appeals case in a sense is 

4 precedent, so it affects more than the litigants, but 

5 these cases literally affect more than the litigants. 

6 They're cases that pass judgment on the validity of a 

7 rule that affects the public at large.

8 And so a decision to not raise a potentially 

9 valid claim means that a rule that may be unlawful 

10 will go into effect. And judicial review is the only 

11 mechanism by which federal rules are held accountable. 

12 It's the only check on federal agencies' authority. 

13 There is no, apart from judicial review by citizens or 

14 state governments or local governments or 

15 organizations, there is no check on the federal 

16 government's rules other than judicial review.

17 So, you know, if bad law is made because a 

18 brief is not long enough to explain the issue 

19 thoroughly or if an issue has been dropped, that 

20 issue, that aspect, unlawful, arbitrary, or otherwise, 

21 will go into effect and affect the public at large for 

22 a long time to come.

23 Another aspect I think of these judicial 

24 review cases that is unusual is their complexity. The 

25 idea behind -- I think the concept underlying word 

26 limits on appellate briefs is that there has been a 
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1 District Court trial that has narrowed the issues, and 

2 I think the concept behind the statutes that send 

3 judicial review cases directly to the D.C. Circuit is 

4 that the agency, the administrative process, will 

5 serve the same function and narrow the issues for 

6 judicial review.

7 In practice, that's not what happens. The 

8 administrative process, you know, certainly can, you 

9 know, can theoretically lead to a result that's either 

10 satisfactory for the party who's been before the 

11 agency, and essentially they comment on the rules and 

12 rule changes to their satisfaction and they don't need 

13 to bring a case, or it could conceivably lead to a 

14 situation where the agency explains its rationale more 

15 thoroughly and the party may still be dissatisfied 

16 with the agency rule but comes to the conclusion that 

17 it's not worth bringing the case.

18 However, in my experience, there are often 

19 many, many issues in the rules that are still 

20 deserving of judicial review. And this is not a 

21 situation where it's simply good enough to ask a Court 

22 to throw out the decision of the Trial Court or throw 

23 out the decision of the agency because often what 

24 petitioners need from an appellate decision in 

25 judicial review cases is not simply vacatur of the 

26 action by the agency but review of each of the 
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1 unlawful aspects and a remand for the agency to fix 

2 those specific defects.

3 So simply picking your best argument, 

4 limiting your challenges and making your best argument 

5 in the hope of getting the rule overthrown isn't a 

6 tactic that works in these judicial review cases 

7 because what may happen after all this, conceivably, 

8 you may end up with a result you don't want, which is 

9 a rule that is good in some aspects and bad in other 

10 aspects being thrown out, or you may end up with a 

11 judgment that simply doesn't cover some of the illegal 

12 or arbitrary aspects of the rule that's being 

13 challenged.

14 Another aspect of judicial review cases that 

15 I think is important is the degree of deference that 

16 is given to agency actions. I'm not suggesting that 

17 there shouldn't be deference given to agency actions, 

18 but that's simply the way it is. Agency statutory 

19 interpretations are reviewed under Chevron, which is a 

20 case that indicates that as long as the agency's 

21 interpretation of a statute is not unlawful or 

22 unreasonable it gets deference. Agency actions are 

23 reviewed under State Farm, which holds that as long as 

24 an agency action isn't arbitrary it gets upheld.

25 I'm not addressing the merits of those 

26 review standards, but for a Court to really exercise 
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1 review under those standards it needs to be able to 

2 thoroughly understand what a petitioner thinks is 

3 wrong with the rule. And when there is an extensive 

4 administrative record, as there often is in these 

5 cases -- administrative records may go thousands of 

6 pages -- it simply is impossible to do that in the 

7 shortened word format.

8 A couple other things I think that are 

9 particularly relevant in these cases. One is that 

10 it's not just the opening brief that matters but the 

11 reply brief, especially in this kind of case, because 

12 often the issues that are fundamental or key to 

13 deciding the case come up for the first time in a 

14 respondent's brief. Issues like standing or 

15 jurisdiction, for example, may not be raised until 

16 they're raised in a respondent's brief or in a 

17 respondent-intervenor's brief so that the reply, which 

18 is half the length of the opening brief, has to cover 

19 not just all of the merits issues but also a bunch of 

20 new issues.

21 In my experience, I've often been forced to 

22 dedicate half of my reply brief or even more of that 

23 to addressing these kinds of new issues, which makes 

24 obviously the words that are available for addressing 

25 the merits issues shorter.

26 I guess the last point I'd like to make is 
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1 that the D.C. Circuit, as I mentioned before, already 

2 does shorten the word limits on a regular basis. 

3 There are really two pieces of this that I think are 

4 relevant. One is I think it shows that the Courts, 

5 the Appellate Courts are perfectly capable already of 

6 making decisions about what length of brief they want 

7 and tailoring those decisions to the cases in front of 

8 them. We're not always happy with the Court's 

9 decisions to shorten word lengths in our briefs, in 

10 our proving our cases, but it's clear that the D.C. 

11 Circuit at least does it on a regular basis and it has 

12 the process for doing that.

13 The other is that shortening the default 

14 word limit to 12,500 words is unlikely to prevent the 

15 Court from or individual Courts from shortening word 

16 lengths further in multiparty cases. The rationale 

17 for shortening word lengths in multiparty cases isn't 

18 that briefs are too long or too wordy. They may well 

19 be, but that's not the rationale. The rationale is 

20 simply that the Court is getting more briefs. The 

21 total number of words that are going before the Court 

22 is greater because there are more parties. And to 

23 address that extra resource stream, the Court is 

24 shortening the word lengths, the briefs for all the 

25 parties. That same impetus would still be there if 

26 the default word length were shortened. We're 
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1 concerned that briefs would be shortened even further 

2 if the word length is shortened for the ordinary 

3 briefs. With that, I'll stop. Thank you.

4 JUDGE COLLOTON: Well, thank you, Mr. Pew, 

5 and thank you all for your testimony. We have time 

6 now for some questions or discussion by the advisory 

7 committee members. Maybe I'll ask one or two to start 

8 the discussion, and then I'm sure my colleagues will 

9 likely wish to chime in.

10 By way of background, this matter came to 

11 the attention of the committee because we had a 

12 suggestion to change rules that are currently 

13 expressed in page limits to word limits. That 

14 required the committee to consider what is the 

15 appropriate conversion ratio. And in the course of 

16 that discussion, as you know from the materials, the 

17 committee thought that 280 words was not the 

18 appropriate ratio to use for the new conversions, and 

19 the question then arose whether we should revisit the 

20 conversion ratio for the brief rule which was changed 

21 in 1998. The other rules were not changed and they 

22 remained in page limits.

23 Now Ms. Timms talked about the history of 

24 the rule and the committee's conclusion that the 

25 equivalence ratio was mistaken, and I think Mr. 

26 Tennant mentioned that in his written testimony, 
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1 although not today, and Mr. Bird's organization wrote 

2 about it. So all of you have commented on that I 

3 think. Maybe not Mr. Pew.

4 So let me mention some of the history that 

5 was before the committee and give you a chance to 

6 comment on that as you'd like. In 1993, the D.C. 

7 Circuit advisory committee on rules did a review or a 

8 study of appellate briefs and concluded that, based on 

9 their review of briefs, the average page, average per 

10 page word count was 250 words. And the D.C. Circuit 

11 on that basis adopted a local rule before the federal 

12 rule was changed that limited briefs to 12,500 words.

13 And I believe, Mr. Tennant, in your written 

14 testimony you acknowledged that a typewritten brief 

15 before the age of computers likely would have included 

16 approximately 12,500 words.

17 MR. TENNANT: Or it could have in the amount 

18 of space, Courier type font.

19 JUDGE COLLOTON: All right. And then, when 

20 the rules committees looked at this in the '90s, by 

21 September of '97 a report of the standing committee on 

22 rules said that new computer software programs made it 

23 possible to create briefs that complied with the 50-

24 page limit but contained up to 40 percent more 

25 material than a normal brief.

26 So this committee had our clerk's 
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1 representative conduct a study of briefs filed in the 

2 Courts of Appeals. These were filed in the Eighth 

3 Circuit because the clerk's representative is from the 

4 Eighth Circuit. And the clerk's representative took 

5 210 briefs, randomly selected, filed in the Eighth 

6 Circuit by attorneys from 1995 through 1998. And even 

7 with this potential for an increase of up to 40 

8 percent more material that the standing committee 

9 referred to for the use of computers in that era, the 

10 clerk's study found an average of 259 words per page 

11 or 12,950 words for 50 pages.

12 Then Judge Easterbrook's comment to our 

13 committee on the proposed amendments said that he had 

14 conducted a word count process on 50 briefs filed by 

15 law firms without printing at around this time and 

16 found an average of about 13,000 words for 50 pages.

17 When Rule 32 was amended in 1998, however, 

18 the advisory committee note says that 14,000 words 

19 approximates the current 50-page limit. And when the 

20 standing committee reported Rule 32 to the Judicial 

21 Conference, its report said that it established length 

22 limitations of 14,000 words or 1,300 lines of 

23 monospaced typeface, which equates roughly to the 

24 traditional 50 pages.

25 So I wanted to give that information for the 

26 record because of what Ms. Timms said and what the 
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1 others have said in their written comments, and I'd 

2 invite you to comment if you wish on why you think the 

3 committee was mistaken to think that 14,000 words was 

4 not the right equivalence for a traditional 50-page 

5 brief. Ms. Timms, would you care to speak to that?

6 MS. TIMMS: As I understand the question, it 

7 is why it is -- the question is why we think that 

8 14,00 words is not the right equivalent for a 50-page 

9 brief. Is that the question?

10 JUDGE COLLOTON: No. I thought you were 

11 criticizing the committee's conclusion that 14,000 

12 words was not the correct equivalence.

13 MS. TIMMS: I see. I understand.

14 JUDGE COLLOTON: And I'm giving you some 

15 material that was, at least some of it, the clerk's 

16 study and the D.C. Circuit study, was the basis for 

17 the committee's conclusion, and asking whether you 

18 wish to comment on that since your testimony was, I 

19 thought, today suggesting that the committee's 

20 conclusion was incorrect.

21 MS. TIMMS: You know, my guess is that --

22 let's go back and look at my study, the briefs I was 

23 able to gather from the 19, the pre-1998 change. 

24 These are briefs that people hung on to for some 

25 reason for 17 years or more. My guess is that they 

26 were briefs in very complicated cases. That's 
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1 certainly what I hung on to. These cases tended to be 

2 in the environmental area, oil and gas, accounting 

3 malpractice. They were complicated cases.

4 So I think what I tended to look at in my 

5 briefs, whether, and it certainly was not intentional, 

6 was these upper end cases that we've been referring 

7 to, the cases where you would have to go and ask for 

8 more words, the ones where, even though most lawyers, 

9 most good lawyers in a typical case might have filed a 

10 brief that was 10,000 words, 12,000 words, whatever, 

11 in these cases, these cases required more.

12 My guess is that the Texas Supreme Court 

13 study maybe was something of a reflection of the same 

14 thing. These are shorter -- these are petitions for 

15 review and you're trying to attract the Court's 

16 attention. You have 15 pages, and so it's extremely 

17 important to those litigants to try to get as much of 

18 their story as they can on that piece of paper. Same 

19 thing for our motion that we filed.

20 I will tell you that there is, so far this 

21 year there is exactly one brief that I have filed, and 

22 it was the response to the motion to stay the 

23 injunction, in which I've pushed the limits. 

24 Everything else I've come in at half, maybe two25 thirds. And that's typical, but it's those tough 

26 cases, the tough ones, where you're pushing those 
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1 limits. And I think that that may be a difference. 

2 It may be something of a sampling difference. If I 

3 just went out and just went to the Fifth Circuit, 

4 maybe, and I could access their old records and pulled 

5 in briefs and started counting them, I think that 

6 people wouldn't have been pushing the word limits as 

7 hard.

8 MR. BIRD: May I comment?

9 MR. KATSAS: Sorry. Can I just ask a 

10 question? I'm not sure I follow the reasoning, which 

11 is you're saying that your sample for your study may 

12 have been skewed to the extent you're tending to get 

13 the more complicated cases and that might explain why 

14 those briefs on average are longer, but I'm not sure 

15 why it affects the number of words per page in your 

16 sample as opposed to the ones the committee is relying 

17 on.

18 MS. TIMMS: It's when you're trying to --

19 it's several things. First of all, at the time, you 

20 had the option of reducing the font size, so at 50 

21 pages it starts to be a problem, you go down to 12 

22 point, you go down to 11 and a half. So that's going 

23 to affect your number of words per page.

24 Secondly, when you're up against a 50-page 

25 limit and you have a certain amount of information 

26 that you need to convey, literally, you start making 
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1 choices like I don't want to use the long, Latin-based 

2 word, I want to use the short, dramatic based word so 

3 that you can get more pages.

4 And it's also paragraphs. You know the 

5 paragraph that carries over by a word? You're not 

6 going to have that. You're going to kill off 

7 something that will pull that paragraph back out. So 

8 there are ways to pull off increased number of words.

9 JUDGE COLLOTON: Mr. Bird?

10 MR. BIRD: Thank you, Judge Colloton. The 

11 American Academy's written comment criticizes the 

12 historical approach as a reason to change the 

13 conversion ratio. The basic position is if it's 

14 worked, ain't broke, don't fix it. Someone else said 

15 that here.

16 We briefly observed Judge Easterbrook's 

17 comments that were posted on the website, but we 

18 didn't attempt to go into our own review, and I can 

19 tell the panel why, and I think this is important in 

20 understanding anybody's study of anything that was 

21 done in the page limits states.

22 Because of the nature of our membership 

23 process, most of the members of the American Academy 

24 were around doing appellate work before the current 

25 rule system was adopted. And I can tell you that 

26 adopting the 14,000 word limit was a great relief to 
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1 us because the system that existed before of page 

2 limits in a world of computerized word processing had 

3 absolutely no integrity whatsoever.

4 So you could -- and perhaps in a large 

5 enough study this could be adequately randomized that 

6 you could get a meaningful number. I'm not sure 

7 that's true. Judge Kozinski's rather famous article 

8 about how to lose an appeal from the Utah Law Review 

9 discusses manipulation of word limits.

10 But we used to see supposedly 50-page briefs 

11 that if you did a cut-and-paste job, probably 30 pages 

12 were single-spaced text, whether they were indented 

13 quotations or they were in footnotes. And that was 

14 done not because those things ought to be single15 spaced or there ought to be that many footnotes. It 

16 was done to get, who knows, maybe 17,000 words into a 

17 brief.

18 Those were ugly. They were manipulations. 

19 They were literally permitted by the rather primitive 

20 typography rules at the time. And as a result of 

21 that, you know, our position has been it would be a 

22 good thing for -- the original principle of the 

23 committee's proposal to change all page limits to word 

24 limits, it would be a good thing to adopt that.

25 We think the 250 word conversion ratio is a 

26 bad decision because it would -- we've gone over the 
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1 briefs on other kinds of documents like motions, as 

2 Ms. Timms discussed -- it would be too restrictive.

3 We think there is one kind of filing on 

4 which the rules already are too short, and that is a 

5 brief in support of a petition for rehearing, an 

6 amicus brief in support of a petition for rehearing en 

7 banc. We think that requires some separate attention. 

8 I think Mr. Samp's comment on the website goes into 

9 that one specifically.

10 But our personal history as practitioners is 

11 that we don't trust anything statistical that comes 

12 out of the bad old days of the unprincipled, if not 

13 downright unethical, manipulation of word limits to 

14 file briefs of essentially any length.

15 JUDGE COLLOTON: Okay. Did you want to 

16 comment, Mr. Tennant?

17 MR. TENNANT: Just briefly. Thank you. In 

18 our comments we do address the analysis that was set 

19 forth in the October 3, 2014 memorandum prepared by 

20 the committee. It's called a short history of the 

21 1998 amendment to Rule 32. And just point out, 

22 obviously we're not typographers. There actually is 

23 within the Council of Appellate Lawyers, there's a son 

24 of a typographer. And he talks about, you know, if 

25 you really go back to this, it may be some confusion 

26 about Microsoft double-spacing versus -- you know, 
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1 leading is the white spacing between lines, and you 

2 can manipulate up and down within some common 

3 understanding of double-spacing that's different from 

4 Microsoft double-spacing.

5 At the end of the day, you know, I think 

6 Judge Easterbrook, who was there, certainly by virtue 

7 of the information that's been disclosed by the 

8 committee seems to have correctly summarized that 280 

9 was the number picked based upon professionally 

10 printed briefs in the supreme Court and that that 

11 number fits within the range that -- I guess Microsoft 

12 representatives came in to the committee, along with a 

13 professional printer, and they talked about how many 

14 words can be on a page, from 250 to, I don't know, 

15 340, and 280 was kind of in the middle.

16 At the end of the day, it's kind of what 

17 makes sense. We are 17 years past the 1998 amendment. 

18 We're trying to figure out what makes sense in today's 

19 practice given the needs of practitioners today. And 

20 who's got the better argument about the conversion 

21 rate seems to basically be looking for some technical 

22 correction that isn't in sync with kind of the larger 

23 picture of what makes sense in order to give litigants 

24 their opportunity to have their day in Court.

25 And just on that note, in a world where 

26 there's declining oral argument, where we're all 
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1 feeling really sprint, we might get five, six minutes 

2 at a podium, briefing is becoming more and more the 

3 only way that a litigant feels that they have a day in 

4 Court. And for our business clients and other clients 

5 who are paying our time to go in to advocate on their 

6 behalf on matters that are extremely important to 

7 them, there's kind of a core integrity issue about, 

8 you know, the appearance of justice and are we getting 

9 our day in Court.

10 And so on that note I will leave, with a 

11 request obviously, that the 14,000 word count limit be 

12 left in place in order to preserve that ability to 

13 articulate claims on behalf of our clients.

14 JUDGE COLLOTON: All right. Well, that's a 

15 good segue then to a different topic. Let me ask one 

16 more question. Then I'll let my colleagues have at 

17 it.

18 We have four appellate lawyers here today 

19 who all oppose the proposed amendment. We've had 

20 comments of course from Judges who favor it and from 

21 some lawyers who favor it, though not as many as 

22 lawyers who oppose it. So let me give you one example 

23 of the reasoning that some favor it not on historical 

24 grounds but on modern day grounds you might say and 

25 let you respond to that.

26 There was published, and it caught my eye, a 
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1 piece in the Journal of Appellate Practice and 

2 Process, Spring 2014, Volume 15, a book review by an 

3 appellate lawyer named Carl Kaplan. You may have seen 

4 it. Mr. Kaplan interestingly says he's a former 

5 journalist, and in that context, he learned that 

6 editors impose tough word counts from above, and he 

7 says that's the best way to shape, sharpen, and focus 

8 a writer's work. In this book review he makes a 

9 suggestion to improve lawyers' written work, namely, 

10 enforce shorter briefs.

11 He quotes the late Judge Aldisert, saying 

12 that he'd read some 630,000 pages of appellate briefs 

13 during his career and that, according to the Judge, 

14 probably about 400,000 of those were unnecessary. He 

15 quotes the late Judge Gee as saying that the most 

16 common literary disease afflicting legal writers is 

17 the bewildering inability to winnow important from 

18 unimportant facts.

19 And then he continues as follows. Of course 

20 both Judges were right. Shorter briefs gain in 

21 clarity and force to meet a work limit. When there's 

22 no chance of filing a longer brief, the author must 

23 drop secondary issues, improve organization, toss 

24 extraneous detail, refrain from overanalysis of cases, 

25 and lift fogginess.

26 But unable to resist the attraction of the 
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1 immaterial, many lawyers and Judges fail to write 

2 tight. Continuing, the author says I'm as guilty as 

3 anyone. My appeal briefs sometimes run the patience 

4 trying 50 or 60 pages. I know better, yet the 

5 counterforces to brevity are strong. Supervisors, 

6 clients, and colleagues often suggest or even insist 

7 that I add arguments that are just strong enough to 

8 pass the laugh test, so I give in.

9 And sometimes when I'm on a tight deadline I 

10 won't have time to write short. And the author then 

11 ultimately concludes the Federal Courts of Appeals 

12 currently have a 14,000 word limit on main briefs. 

13 This is too generous a limit.

14 That's roughly an example of some of the 

15 arguments that were made by commentators who support 

16 the proposal, and so I invite you to react to that 

17 thesis if you wish and particularly if you want to 

18 comment on what he says are the salutary effects of 

19 tighter limits and the counterforces to brevity that 

20 you encounter as lawyers and whether those are reasons 

21 to allow longer briefs or reasons to consider 

22 tightening them.

23 MR. BIRD: Judge Colloton, I'd ask the 

24 privilege of going first on this. Many things you 

25 said made me smile for reasons that I'll disclose. I 

26 too am a former journalist. It did not become my 
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1 profession. It was what got me through undergraduate 

2 school. I love editors, and the comment about good 

3 editing is spot on. In fact, almost every book about 

4 good brief writing talks about the value of editing 

5 and talks about the value if you don't have an editor 

6 of being able to put a brief down for a period of time 

7 and self-edit after you've forgotten exactly what it 

8 was you wrote and you can look at the brief with 

9 somewhat fresh eyes.

10 I'm saddened to say that after the Great 

11 Recession and after the many changes of attorney12 client relationships that occurred during the Great 

13 Recession, clients won't pay for it anymore. It's 

14 much more difficult to bill and collect editing time, 

15 and that is a disincentive to writing short that is 

16 not within Your Honor's list.

17 I think the disincentives to writing short 

18 that Your Honor cited are accurate. They definitely 

19 exist. I think it's our job to resist them as well as 

20 possible. Again I'll go back to the process of 

21 getting you better lawyers by encouraging 

22 specialization.

23 A good appellate lawyer -- we can all get 

24 bombed by a record we didn't expect for two months and 

25 it comes in from the court reporter and now we've got 

26 completely inconsistent deadlines and maybe expedited 
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1 cases, of course, that won't get extensions of time, 

2 but experienced lawyers try to keep a docket in order 

3 and try to do, to use a construction industry term --

4 this is my words, others use different words -- try to 

5 create a critical path from how do I get from never 

6 having seen this case before to having the record 

7 read, to having an outline of a brief, ultimately to 

8 having a brief.

9 Inexperienced lawyers I think suffer -- by 

10 inexperience, I'm referring to appellate practice -- I 

11 think suffer more from the disincentives that Your 

12 Honor recited than do experienced practitioners. I 

13 think we can do a somewhat better job of managing time 

14 so that we can manage against those disincentives.

15 In my opening comments I spoke about the 

16 problems of clients, particularly assistant and 

17 associate general counsels who get an appeal before 

18 they went in-house and think they know how to write a 

19 brief and love to tell appellate lawyers what that is.

20 I will add one note of encouragement. I 

21 happen to be a fan of the program that's been out for 

22 a couple of years called WordRake. WordRake will not 

23 help people eliminate from briefs the arguments that 

24 shouldn't be in there, but within an argument WordRake 

25 is the equivalent of my old city editor, Mel Bennett, 

26 with his chin on my shoulder at 6:30 in the morning 
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1 after he had his anchovy omelette telling me I really 

2 can't strike these off my Underwood, these words off 

3 my Underwood.

4 And speaking for the considered comments of 

5 the American Academy, I've tried to avoid personal 

6 comments, but one thing that made me smile here is I 

7 can't -- well, two things. One, all of these things 

8 about how to write like a lawyer or a better appellate 

9 lawyer I think in training we should replace by how 

10 not to write like a lawyer. My goal for the first 

11 maybe seven years of practice was to learn to write 

12 like a lawyer, and ever since then it's been to learn 

13 to write like John McPhee. And I think that's a much 

14 better goal in the end. And I would love to teach 

15 that to practitioners all over the country who would 

16 like to come to your Courts. I think they would write 

17 you briefs that at least through the statement of fact 

18 you would find more interesting.

19 And one source of personal pride that made 

20 me smile in Your Honor's comments, I cannot think of a 

21 brief that I have written in the last decade that went 

22 up for review that came back with a suggestion to make 

23 it shorter. They always come back, whether it's the 

24 client, whether it's a trial lawyer, whoever referred 

25 it to me, they always come back with proposals for 

26 putting in more words. And I always try to resist, 
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1 but I am not always successful.

2 JUDGE COLLOTON: Does anyone else wish to 

3 comment on that matter? Mr. Tennant?

4 MR. TENNANT: Well, I think it comes back to 

5 the issue of kind of individual experiences versus 

6 some type of empirical study. I don't know Carl 

7 Kaplan and I don't know his practice. In terms of the 

8 lawyers from the elite appellate firms in Washington, 

9 D.C. who put in their joint statement, I do know many 

10 of them.

11 I do think, though, it would be good to get 

12 past kind of the more generalized comments about, you 

13 know, less is more. I agree a shorter brief is 

14 generally better than a longer brief, except when it's 

15 not, when you need the space. And it's all about the 

16 individual judgments of lawyers who have the 

17 experience, the writing ability, and the fine control 

18 to basically be able to put in a brief that is of an 

19 appropriate limit.

20 And as I said before, word count is 

21 basically almost unrelated to the quality of briefing 

22 and it's a rough measure that penalizes, we believe, a 

23 lot of very good lawyers who are doing the right thing 

24 not only for their clients but also for the Court.

25 JUDGE COLLOTON: Any other comments? All 

26 right. Any other -- Judge Chagares?
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1 MR. PEW: I had a --

2 JUDGE COLLOTON: Oh, Mr. Pew, go ahead, and 

3 then Judge Chagares.

4 MR. PEW: Really, a couple of comments, one 

5 which I think is sort of similar to Mr. Tennant's, 

6 which is that although there is certainly the 

7 potential for over-length briefs, the solution, the 

8 one size sort of fits all solution of shortening all 

9 briefs to 12,500 words doesn't seem like it makes very 

10 much sense.

11 The reason for that is that an appeal, an 

12 appellate brief might address one simple issue or it 

13 might address five very complicated issues. The brief 

14 with one simple issue that's 14,000 words might be 

15 over-length. It might be that that brief very well 

16 could have been written more succinctly. The brief 

17 that addresses five complicated issues might be hard 

18 put even if at its most succinct to come in under 

19 14,000 words.

20 So trying to address the problem, or I think 

21 really what the, the suggested rule change is trying 

22 to address the first problem, it would actually do a 

23 lot of damage to briefs that have to address more 

24 complicated issues. And that actually goes to one of 

25 the comments from I think Kaplan's article about 

26 secondary issues or secondary arguments.
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1 This change wouldn't force people to not 

2 include secondary arguments that aren't worth hearing. 

3 It would actually include litigants to drop valid 

4 claims to a whole different aspect of a rule, leaving 

5 serious defects in a rule that was going to affect the 

6 entire public, which could go to health, safety, or 

7 other important issues with the public cases.

8 The other point I'd like to make is that 

9 without any change to the federal rules, I mentioned 

10 this before, Courts are perfectly capable of deciding 

11 on a case-by-case basis and a Circuit-by-Circuit basis 

12 if they want shorter briefs in a given case.

13 JUDGE COLLOTON: How can a Court do that 

14 under the current rule, other than in a multiparty 

15 case?

16 MR. PEW: Well, the D.C. Circuit has shown 

17 that it's willing to do so in other cases. I mean, 

18 the D.C. Circuit hasn't said we're shortening, it 

19 hasn't indicated that its authority to shorten word 

20 lengths is limited to situations where there are 

21 multiparty cases. It simply exercises its discretion 

22 to shorten briefs. And, you know, whether or not you 

23 believe that's appropriate or not, that's simply what 

24 happens.

25 And I think that leads to a last point, 

26 because one suggestion I think, that I think came from 
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1 the Solicitor General's Office is that the situation 

2 could simply be reversed where you have a default 

3 brief of 12,500 words in length but perhaps loosened 

4 requirements for extending the briefs.

5 Now I know that the D.C. Circuit's current 

6 rules on brief extensions are very tight and are 

7 effectively a prohibition on lengthening briefs. What 

8 rule, D.C. Circuit Rule 28(E)(1) says is if the Court 

9 disfavors motions to exceed limits, such motions will 

10 be granted only for extraordinarily compelling 

11 reasons.

12 I believe that even if that rule was changed 

13 the Court's disinclination to grant extended brief 

14 lengths would still be there and that that would 

15 probably affect different parties differently. That 

16 is, whereas the Solicitor General or the government 

17 might get more deference in a request for extended 

18 briefs, I doubt that private litigants would get that 

19 kind of deference.

20 JUDGE COLLOTON: Just one comment on

21 Rule 32. As currently written, it requires a Court of 

22 Appeals to accept a brief that complies with the 

23 rules, and so a 14,000 word brief must be accepted. I 

24 don't think personally that the Court has authority to 

25 reduce the limit outside of maybe the multiparty 

26 context. Judge Chagares has a question.
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1 Judge?

2 JUDGE CHAGARES: Actually you, Mr. Pew, just 

3 hit on it, but actually Mr. Bird first mentioned it, 

4 about the making a motion for extension. Apparently, 

5 I mean, from your comment, it was brief, you stated 

6 that you probably would not be able to get extensions. 

7 Could you just expand on that a little bit?

8 And I wonder, why is it the government 

9 would? Why would they get more -- I mean, I'd like to 

10 think the Courts would consider each motion on the 

11 merits, you know, if it's a complex case as you've 

12 talked about. I mean, I'd like to think the Court 

13 would take that seriously.

14 MR. BIRD: Your Honor, I think it varies a 

15 great deal from Circuit to Circuit. Mr. Pew read the 

16 D.C. Circuit rule. I think the Fifth Circuit has a 

17 rule that's very, very similar to that. I think if we 

18 were to look at the actual practices on a Circuit-by19 Circuit basis there would be a lot of differences as 

20 there are in many other things on a Circuit-by-Circuit 

21 basis.

22 The comment about the government, I think 

23 when the United States in a Federal Court takes the 

24 position, whether it's on the merits or whether it's 

25 about a procedural issue, that it's an important 

26 matter of public policy, that an argument needs to get 
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1 to the Court, that the government should be allowed to 

2 file a brief, take part in a particular way.

3 I think federal Judges, including Circuit 

4 Judges, are much more inclined to go along with 

5 granting that kind of request. I think I have a 

6 relatively recent experience involving international 

7 arbitration and sanctions against Iran resulted in a 

8 published opinion of the Ninth Circuit where, after 

9 full briefing and oral argument that went over time, 

10 the panel was so concerned about potential foreign 

11 policy impacts of ruling in the case either way that 

12 it did not submit the matter but went out of its way 

13 to ask the government to file a brief.

14 I am not complaining about that. If the 

15 United States Government says that there's an 

16 important matter of public policy involved in a case 

17 and it wants to present a position, whether it's by 

18 over-length brief, filing a brief as amicus, or 

19 whatever, I think the Federal Courts should hear it.

20 And I do think that when I say the same 

21 thing on behalf of a private party that's profoundly 

22 potentially affected by a decision in the case, the 

23 Court is going to look at that from the standpoint of 

24 this is a private party with a commercial interest, we 

25 have a different balance here than whether it makes a 

26 difference to all the citizens of the United States as 
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1 carried out through foreign policy, tax policy, or 

2 anything else.

3 So I don't mean to be deprecating of either 

4 the government or the Judges. It's just the fact that 

5 there are magic words that the government can say that 

6 justify allowing kinds of participation, assertion of 

7 arguments, whatever, that I can't say. Or no matter 

8 how important my position may be to a client or an 

9 industry, we'll be heard differently.

10 JUDGE CHAGARES: So you're worried about --

11 can I -- could I just --

12 JUDGE COLLOTON: Go ahead, and then Judge 

13 Taranto next.

14 JUDGE CHAGARES: So you're concerned about 

15 different treatment depending on which Circuit you 

16 would appear in.

17 MR. BIRD: If we're talking about whether a 

18 given Circuit would grant relief from page limit or 

19 from word limits for a particular brief or other 

20 document, yes. As a matter of principle, I don't like 

21 the Solicitor General's proposal as an alternative to 

22 what Mr. Pew I think accurately calls a default.

23 Instead of 14,000 words certain, we have 

24 12,500 words uncertain. I don't like that because I 

25 think it would have a disparate impact. So that's how 

26 it relates to what's before the committee.
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1 JUDGE CHAGARES: I just had one other very 

2 quick thing. I think that we all agree that better 

3 written briefs help everybody, helps our system of 

4 justice. Did I hear correctly that the American 

5 Academy of Appellate Lawyers is willing to do a 

6 YouTube video for all Courts to help people do better 

7 briefs?

8 MR. BIRD: I can make that happen.

9 JUDGE CHAGARES: All right. I don't know 

10 how logistically that works, but thank you.

11 MR. TENNANT: I think the ABA Council of 

12 Appellate Lawyers would be willing to elaborate.

13 MR. BIRD: We'd love to do it collectively, 

14 too.

15 JUDGE COLLOTON: Judge Taranto?

16 JUDGE TARANTO: I'd like to get some more 

17 information from you about what range of practices 

18 there are for consideration on a case-specific basis 

19 of requests to exceed whatever the default rule is. 

20 Somebody mentioned -- you did, I think, Mr. Tennant --

21 the Fifth Circuit requirement of submitting the over22 length brief two weeks ahead of the deadline.

23 Because one of the real concerns, certainly 

24 in my mind, keyed off the submission of the Justice 

25 Department, is that if the default length is lower 

26 there ought to be a greater liberality in granting 
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1 extra words. And then I start to wonder what that

2 process looks like, thinking in particular that it 

3 would seem to have to be a process that involves 

4 judicial decisionmaking before the Court knows 

5 anything about the case.

6 MR. TENNANT: Thank you for your question. 

7 I mean, I think it's an interesting issue in terms of 

8 how, if you move to a 12,500 word limit, at least 

9 presumptively, what could you do to kind of make up 

10 for that through motion practice? Or I think Mr. Bird 

11 mentioned the possibility of early conferencing on a 

12 case so that you could have something in the way of a 

13 process.

14 You know, we have the CAMP conferences in 

15 the Second Circuit where, you know, it would be 

16 possible for a knowledgeable person within the Court 

17 system to sit down with the lawyers and have them talk 

18 about what their needs are and to try to tailor at 

19 that point what would be an acceptable briefing length 

20 for each side for multiple parties, for all the 

21 parties. I mean, you could do something like that.

22 What I think we're all concerned about is 

23 that --

24 JUDGE TARANTO: I'm sorry. You called it --

25 I didn't hear the word -- a camp process?

26 MR. TENNANT: CAMP conference.
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1 JUDGE TARANTO: Conference.

2 MR. TENNANT: It's Civil Appeals

3 Management -- come on. Help me. P.

4 FEMALE VOICE: I always thought it was 

5 process, but --

6 MALE VOICE: Plan.

7 MR. TENNANT: Plan.

8 MALE VOICE: Plan.

9 MR. TENNANT: Thank you. Right. So anyway, 

10 in the Second Circuit you can have these. You know, 

11 they typically have somebody in the clerk's office 

12 trying to see if there's some way to mediate the case, 

13 and, you know, sometimes the different Circuits, the 

14 Third Circuit, you know, try to leverage a little bit 

15 and say this is how we think the Court will come out 

16 on your appeal, maybe you want to think about 

17 settling. But there's at least some opportunity for 

18 the Court at the front end early in the process to 

19 have a conversation with the parties where they're 

20 able to think about for this particular case what 

21 would be an appropriate brief length.

22 JUDGE TARANTO: Does that occur for all 

23 cases or only a small subset of the cases? Because 

24 I'm curious about resources and that kind of thing.

25 MR. TENNANT: It doesn't happen in all 

26 cases. I'm not sure what cases they choose to use it 
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1 in. For example, the Indian law cases that have gone 

2 up and down to the Supreme Court, you know, they have 

3 no interest in trying to see if that's going to be, 

4 you know, could be settled by the clerk's office 

5 intervening. But I really don't know kind of what the 

6 mechanics are for identifying the cases that go into 

7 that CAMP conference, but you could have, from a 

8 structural standpoint, a conversation early on, maybe 

9 call it CAMP or not, where there is essentially a 

10 negotiated briefing length for the case.

11 JUDGE TARANTO: All right.

12 MR. PEW: May I make one other point to your 

13 question about resources? If the underlying concern 

14 is with the expenditure of the Court's resources on 

15 reading over-length briefs, I wonder if the solution 

16 of, the suggested solution of having a default shorter 

17 brief length with a more liberal extension wouldn't, 

18 you know, actually consume more resources or at least 

19 even out, because there would be extensive motions 

20 practice over brief lengths. 

21 JUDGE COLLOTON: Sometimes -- I was going to 

22 see, do you want to comment, Mr. Bird?

23 MR. BIRD: If I may, Judge Colloton.

24 JUDGE COLLOTON: I just want to make sure 

25 that you have a chance to hear whatever questions the 

26 committee has, but if you want to add on this, please 
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1 do.

2 MR. BIRD: Absolutely. I want to say Judge 

3 Taranto raises a valid question about predeciding 

4 issues because in order to file an over-length brief 

5 in any Circuit I have to file some form of a motion. 

6 It may be handled by a Judge. Other Circuits use 

7 different approaches.

8 But in making my case for filing an over9 length brief I have to say why, which inevitably 

10 discusses the merits. I need this space because I 

11 need to make this constitutional argument.

12 And it does create at least the possibility 

13 that whoever is ruling on that motion will decide I do 

14 or I don't or the Court does or it does not want to 

15 hear that argument. I don't care if he wants to raise 

16 it, we're going to have a 12,500 word brief, and if he 

17 wants to stick that in in 500 words, let him do it.

18 I have no reason to believe that any Circuit 

19 Judge deciding these anyplace does that, but as a 

20 principal issue of risks of predeciding cases, it's a 

21 valid point, Your Honor.

22 JUDGE COLLOTON: Sometimes it's hard to 

23 interject in a meeting like this from a remote 

24 location, so I want to check whether anybody, first of 

25 all participating by telephone, Mr. Newsom or Judge 

26 Fay, has anything either of them wants to ask. 
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1 Gentlemen?

2 JUDGE FAY: No. I think it's been covered 

3 adequately as far as I'm concerned, Judge. Thank you 

4 very much. Some of the questions I would have asked 

5 have already been asked.

6 JUDGE COLLOTON: All right. Mr. Newsom, 

7 anything from you?

8 MR. NEWSOM: (No response.)

9 JUDGE COLLOTON: We may have lost Mr. 

10 Newsom.

11 FEMALE VOICE: We just did.

12 JUDGE COLLOTON: All right. And then 

13 Justice Eid and Professor Barrett are on video. 

14 Either of you have anything you wish to raise?

15 JUSTICE EID: I don't. This is Justice Eid. 

16 I don't.

17 PROF. BARRETT: This is Amy Barrett. I 

18 don't either.

19 JUDGE COLLOTON: Mr. Letter?

20 MR. LETTER: I just had one question that 

21 Judge Taranto and I both had. Mr. Pew, I think, I 

22 don't know whether we heard you correctly or not. 

23 This is a factual question. Did you say that in the 

24 D.C. Circuit in non-multiparty cases, so with just an 

25 appellant and an appellee and nobody else, the D.C. 

26 Circuit sometimes tells the litigants they have to 
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1 file briefs less than 14,000 words?

2 MR. PEW: I think what I meant to say is 

3 that the rationale, as far as I can tell, the 

4 rationale for cutting multiparty briefs would apply 

5 equally to single party briefs. I can't think of an 

6 example where a single party brief is less than 14,000 

7 words, although there may be. But I would say that 

8 I'm not sure why the rationale would apply just to 

9 multiparty briefs and not single party briefs. I 

10 don't believe the rule makes that distinction.

11 MR. LETTER: Again, though, just to make 

12 sure we heard you correct. You're not saying the D.C. 

13 Circuit actually provides in non-multiparty cases for 

14 briefs less than 14,000.

15 MR. PEW: I couldn't say for sure one way or 

16 the other on that.

17 JUDGE COLLOTON: Mr. Garre?

18 MR. GARRE: First of all, thank you for your 

19 testimony. It was really informative and helpful. I 

20 had a question going back to your experience, since 

21 all of you have so much experience, about how the 

22 rules operated before 1998. I know there were 

23 concerns expressed about manipulation, but putting 

24 that to one side -- and I'm assuming that this is the 

25 best group to engage in that -- do the 50-page limits 

26 address the sorts of concerns that have been raised 
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1 today about being able to address the issues in the 

2 case or deal with the complexity of the case in your 

3 judgment, or were there concerns that existed then 

4 about even a 50-page limit not being sufficient to 

5 address those concerns?

6 MS. TIMMS: I'm just going to take this 

7 first just because we had 50-page limits for much 

8 longer in Texas than in the Federal Courts. I will 

9 tell everyone here that I have never once over the 

10 entirety of my career asked for extra pages or extra 

11 words, but I have been dealing with what is now, by 

12 comparison, a more liberal standard.

13 The 50 pages I always found a way to live 

14 with, and the 14,000 words, I always found a way to 

15 live with that. Sometimes it's very difficult. The 

16 brief that I had kept from before the rule change, it 

17 was a Federal Court brief and that brief had started 

18 out at 80 pages. And it took a solid month of editing 

19 to get it down, but we could live with 50 pages. I 

20 don't think I could have lived with 40.

21 And so the nice thing about the rules as

22 they exist now is I do think, following up on what Mr. 

23 Pew has said, it's cut back dramatically on the number 

24 of motions that you see for over-length briefs. 

25 People feel like this is generally a fair standard. I 

26 should be able to live within these limits. You can 
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1 use it as a method to control your client, frankly.

2 But if you start having a system where 

3 people routinely ask for extra words, it's going to 

4 really upset that system that's been in place, and I 

5 think that that may have unfortunate unforeseen 

6 consequences.

7 MR. BIRD: Responding directly to your 

8 question, the 50-page limit was an issue in complex 

9 cases more so than 14,000 words. And as I commented 

10 earlier, it resulted in far more self-help than 

11 motions. So I think the pressure valve against 

12 motions to file over-length briefs back then was the 

13 extent to which manipulation could be used, and some 

14 of it could be done in ways that were not noticeably 

15 lacking in integrity.

16 MS. TIMMS: Let me follow up for just a 

17 second. The brief that I have kept in its initial 

18 form was rejected by the Fifth Circuit. We were 

19 working with someone who could not drop arguments, a 

20 client, and loved footnotes. The Fifth Circuit was 

21 very nice at working with us to get us to be able to 

22 file a acceptable brief, but it was a challenge.

23 JUDGE COLLOTON: Is Mr. Newsom on the line?

24 MR. NEWSOM: Yeah, Judge. I'm so sorry. 

25 When you called on me, rather than unmuting myself, I 

26 cut myself off.
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1 JUDGE COLLOTON: Well, I just wanted to see 

2 if you had anything you wished to raise with the 

3 witnesses.

4 MR. NEWSOM: No. No. Listen, I'd like to 

5 express my appreciation for all of the testimony, and 

6 especially after the questions asked by the other 

7 lawyers, I feel like that I've got full information.

8 JUDGE COLLOTON: Very well. Thank you.

9 Greg, did you have anything?

10 MR. KATSAS: (Nonverbal response.)

11 JUDGE COLLOTON: Professor Struve, you may 

12 ask a question.

13 PROF. STRUVE: Well, this will seem very 

14 mundane after the large issue on which you've rightly 

15 focused. I wanted to join in the thanks others have 

16 expressed for the care you've taken in submitting 

17 comments and testimony and coming, making preparations 

18 to come multiple times for our rescheduled hearing.

19 A technical point. One of the commenters, 

20 Mr. Finell, has pointed out the potentially extraneous 

21 nature of the line limits, especially in the proposed 

22 limits for documents other than briefs. Everyone's 

23 been focusing on word limits. I presume that's 

24 because that's what people use.

25 Would there be any downside in your view if 

26 the typed volume limits for documents other than 
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1 briefs are formulated only in terms of word limits, 

2 and we delete the line limit feature of those 

3 provisions?

4 MR. TENNANT: My understanding is that is a 

5 technical kind of omission or correction that Mr. 

6 Finell correctly pointed out. I haven't personally 

7 studied it, but I believe his comment is well-taken.

8 PROF. STRUVE: So?

9 MR. TENNANT: So that the, as I understand 

10 it, the line limitation would come out and it would 

11 only be a word count for all.

12 PROF. STRUVE: Exactly. And my question is 

13 would lawyers miss having the line limit option as an 

14 option for compliance?

15 MR. TENNANT: Not to my understanding.

16 MS. TIMMS: I was going to say I have never 

17 seen anyone turn in a certificate of compliance that 

18 listed the number of lines.

19 PROF. STRUVE: Thank you.

20 MR. BIRD: And I'll reiterate the American 

21 Academy's position that everything should be word 

22 limits.

23 JUDGE COLLOTON: Say in 2013 you probably 

24 know Rule 28 was amended to remove the requirement of 

25 a separate statement of the case and a separate 

26 statement of the facts. The committee was concerned 
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1 that those had generated confusion and redundancy.

2 Since we have you here, I'd be interested in 

3 your thoughts on whether that rule has helped 

4 eliminate redundancy and, insofar as it might be 

5 relevant to our current discussion, whether it's 

6 allowed lawyers to prepare an equivalent brief in 

7 fewer words because there's no requirement of a 

8 separate statement. Mr. Tennant?

9 MR. TENNANT: Yeah. Judge Colloton, I think 

10 that was a helpful change. I think we're in a 

11 struggle to understand kind of what to put under 

12 nature of case and what's redundancy. One of the 

13 comments that we made in our written submission was 

14 that there might be other opportunities to think about 

15 changing the content and format of briefs to try to 

16 make them shorter and less repetitive.

17 One of the things that often, and it's in my 

18 writing too, you know, there's an optional preliminary 

19 statement, introduction, something that's just trying 

20 to explain something snappy about the case that sets 

21 the hook that's kind of there, but that by nature is 

22 an opportunity to inject some merit discussion.

23 I mean, you have to, well, why this is an 

24 important case and why we should win in some pithy 

25 presentation. So that's already anticipating. You 

26 have the summary of argument, and then you have the 
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1 argument. Then you have the statement of facts.

2 So there are lots of ways in which briefs 

3 can for one reason or another wind up -- you know, 

4 things are getting carried forward in a way that may 

5 be fine from some type of educational standpoint, but 

6 to the reader, you know, it's kind like I've read this 

7 before.

8 So again, I'd be interested in what all the 

9 people who have such great experiences on both sides, 

10 you know, as practitioners, as Judges, and seeing the 

11 work product, if there are other ways where briefs 

12 could be made essentially more reader-friendly that 

13 avoid -- you know, somebody was talking, I guess Carl 

14 Kaplan, the attraction to the immaterial.

15 I think it's the attraction to the 

16 repetition. That's where I see a lot of briefing 

17 that, you know, potentially could be trimmed up, but 

18 it's kind of how do you do that. And I think it's a 

19 very skilled process of editing and trying to figure 

20 out ultimately how can I make this brief sing or at 

21 least, you know, half squawk and have, you know, some 

22 type of persuasive force.

23 And, you know, there's intention in the kind 

24 of, yes, we're telling you this, we're going to tell 

25 you what we're going to tell you, now we told you, and 

26 now we're going to say what we told you. And that 
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1 kind of educational process can wear thin obviously.

2 MS. TIMMS: Just quickly also, my answer to 

3 your question is I don't think that there's a 

4 substantial savings of words in that change that was 

5 made. I think you still cover the same information. 

6 It's not like you covered more information before, you 

7 just had to categorize it, and so all of those things 

8 you still put in your brief. If it was important 

9 enough to be in there before, it still goes in. The 

10 only savings is the extra heading.

11 MR. BIRD: A good lead, whether it's in a 

12 print newspaper or a blog, is still one paragraph that 

13 has the four Ws in it. Writing a word, a rule 

14 compliant brief under the Federal Rules of Appellate 

15 Procedure, we can't do that.

16 I think there's a lot that could be said 

17 about modifying the federal rules on brief structure 

18 that would make briefs shorter and easier to read at 

19 least for Judges who haven't already developed a 

20 process of, for example, first I look at the table of 

21 contents, then I look at the summary of argument.

22 I know many Judges do have a variety of ways 

23 of approaching briefs to get to what is this case 

24 about rather than reading it sequentially. I'd love 

25 to be able to write briefs sequentially to make sense 

26 like they were McPhee stories or newspaper articles, 
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1 and I can do that in State Court in most states, but 

2 that's not --

3 JUDGE COLLOTON: What specifically do you 

4 have in mind? What change to the structure of the 

5 federal appellate brief do you recommend in light of 

6 how you file briefs in State Court?

7 MR. BIRD: A short, agenda-setting 

8 introduction would be very useful instead of starting 

9 an appellant's brief with a statement of jurisdiction 

10 or an appellee's brief with an agreement with the 

11 statement of jurisdiction.

12 I do like what was done with Rule 28 so that 

13 the order of the proceedings below and the facts, at 

14 least counsel gets to choose that, because sometimes 

15 it's all about the procedure and sometimes it's all 

16 about the underlying story. And I'm glad at least at 

17 that level we get the choice now, but we use it 

18 wisely.

19 This is a subject on which we could go on 

20 for a long time, and I would enjoy that. It's not 

21 Your Honor's agenda today --

22 JUDGE COLLOTON: Right. Fair.

23 MR. BIRD: -- and so I don't want to take up 

24 that kind of time, but there's a lot that could be 

25 done.

26 JUDGE COLLOTON: All right. Thank you.
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1 Any other? Greg, you're good?

2 MR. KATSAS: No, I'm good.

3 JUDGE COLLOTON: Well, any comments or 

4 questions from our remote participants? Otherwise, I 

5 don't --

6 MALE VOICE: No. Not me.

7 JUDGE COLLOTON: All right. Well, I see no 

8 others from the group here. I don't know that we need 

9 closing statements. I think we've heard and read what 

10 you have to say about the rules, so we want to thank 

11 you again on behalf of the committee for taking the 

12 time and effort to come here and to share your views 

13 and to answer our questions today, particularly in 

14 light of the disruption with the weather on the first 

15 hearing. We're appreciative of your time and efforts. 

16 And unless someone is urgently wishing to say 

17 something more -- I'll give you five seconds to raise 

18 your hand.

19 MR. TENNANT: Can we say thank you?

20 JUDGE COLLOTON: Well --

21 MR. TENNANT: Yeah. We'd really like to 

22 thank the advisory committee for allowing us the 

23 opportunity to appear here. And the talk has been a 

24 very useful exchange, so thank you.

25 JUDGE COLLOTON: Good. Well, with that, the 

26 hearing is adjourned, and the committee will be 
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1 meeting later in April to consider the proposed 

2 amendments and proceed from there, so thank you very 

3 much.

4 (Whereupon, at 11:57 a.m., the hearing in 

5 the above-entitled matter was concluded.)

6 //

7 //

8 //

9 //

10 //

11 //

12 //

13 //

14 //

15 //

16 //

17 //

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //

26 //
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REPORTER'S CERTIFICATE

DOCKET NO.: N/A

CASE TITLE: Public Hearing on Proposed Amendments

to the Federal Rules of Appellate

Procedure and Official Forms

HEARING DATE: April 1, 2015

LOCATION: Washington, D.C.

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts.

Date: April 1, 2015

 

Judy Grill

Official Reporter

Heritage Reporting Corporation

Suite 206

1220 L Street, N.W.

Washington, D.C. 20005-4018