Testimony

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. 20544

April 1, 2015 

 TAB

Charles A. Bird, Esq., American Academy of Appellate Lawyers................................ 1

Cynthia Keely Timms, Esq., Chair, Appellate Section of the 

 State Bar of Texas............................................................................................. 2

 

David H. Tennant, Esq., Co-chair of the Appellate Rules Committee of the

American Bar Association’s Council of Appellate Lawyers............................ 3

James Pew, Esq., Earthjustice...................................................................................... 4
TAB 1

Charles A. Bird, Esq., 

American Academy of Appellate Lawyers
Outline of Proposed Testimony

AAAL President Charles A. Bird

February 17, 2015

1. Introduction.

AAAL thanks the committee for the opportunity to discuss the

proposed rule change. My focus will be on what’s better than the

proposed rule. Our published comments, drafted by our rules

committee and adopted by our board, state our views of the

proposal as made.

2. Bench versus Bar serves neither.

2.1 We and our clients communicate with the courts of appeals

primarily through our briefs. Restrictions on what we can say go

to the heart of both the perception of justice and the realization of

justice. Everyone benefits from a brief that fully and competently

presents a case.

2.2 Using one-size-fits all rules to try to change law-practice behavior

causes stress, causes misunderstanding, and invites aberrant

behavior.

2.3 The committee’s process should be a forum to improve appellate

practice, even if the committee can only recommend action by

others on some proposals.

3. We recognize bad briefs are an issue. The target should be bad briefs,

not all briefs in the range of 12,500 to 14,000 words. Courts of appeals

get bad briefs from:

3.1 Lawyers who can’t write.

3.2 Lawyers who don’t understand how to advocate in appellate

courts.

3.2.1 This is a moving target as technology develops.

3.2.2 Deselecting issues and arguments takes courage that can

only come from experience.
3.3 Lawyers whose clients don’t understand appellate courts.

Lawyers’ first concern is clients: getting, keeping, not being sued

by. GCs and favored trial lawyers can interfere even with

specialist performance.

4. Overall things to do.

4.1 Certify federal appellate specialists; consider competency

standards for admission to circuit-level practice.

4.2 Develop circuit bar associations that focus on better advocacy in

their appellate courts; teach how to frame and select issues,

including critical evaluations of the standard of review,

prejudicial error, and appellate remedy.

4.3 Have more oral arguments in counseled cases; every oral

argument is a potential teaching experience.

4.4 Write more disclosing memorandum dispositions. The court’s

issue selection is also a teaching experience.

5. Study fluctuating length limits for appellate briefs.

5.1 For pro se parties, develop a short-form brief (See Ninth Circuit

appellant’s informal brief).

5.2 For counseled cases, study allowing circuits that actively manage

appeals to shorten the 14,000 word limit based on the length of

the record and the complexity of the case. FRAP should still

provide base word limits for particular kinds of appeals in

circuits opting into the active case management process. The

actual word limit, to be not less than the FRAP base, would be set

by a motions attorney when the briefing schedule is set, after

consulting with counsel. This step would be easy to add to early

settlement evaluation in circuits that have such programs. The

parties would retain the right to seek leave from the court to file

longer briefs. Take care with reply briefs, since shotgun

appellee’s briefs and alternative grounds to affirm can cause

major difficulties.
TAB 2

Cynthia Keely Timms, Esq., 

Chair, Appellate Section of the 

State Bar of Texas
1 

STATE BAR OF TEXAS

APPELLATE SECTION

TESTIMONY ON PROPOSED AMENDMENTS

TO THE FEDERAL RULES OF APPELLATE PROCEDURE

BEFORE THE ADVISORY COMMITTEE ON APPELLATE RULES

FEBRUARY 17, 2015 

 

 The Appellate Section of the State Bar of Texas (the “Section”) represents its attorney 

members, promotes the role of appellate lawyers in Texas, enhances their skills, and improves 

appellate practice in Texas. It furthers these goals by offering continuing legal education, 

disseminating materials on matters of interest to members of the Section, and creating 

opportunities for the exchange of ideas among members of the Section. The Section currently 

has around 1960 members. 

 The Section wishes to comment on the proposed Amendments to Rules 5, 21, 27, 28.1, 

32, 35 and 40 with regard to the proposal to reduce the current word limits in briefs. These 

comments also address the proposal to apply a conversion rate of 250 words per page on 

documents being converted from page to word limits. The Section opposes both proposals and 

believes that a conversion rate of at least 280 words per page is more appropriate and better 

supported. 

Testimony on Length Limits in Proposed Amendments to Rules 5, 21, 27, 28.1, 32, 35 and 40. 

The Section opposes the proposed changes that would effectively use a conversion rate of 

250 words per page to define the number of words permitted in documents being filed in 

accordance with the listed rules. The Section advocates that the Federal Rules continue to use a 

word-to-page conversion factor of at least 280 words per page. 

When the Advisory Committee on Appellate Rules voted in April to reduce the words in 

principal briefs from 14,000 words to 12,500 (while proposing similar changes in other 

documents), it relied on a 1993 analysis that concluded the average words per page in briefs filed 

at that time was 250 words per page. Based on that study, the Advisory Committee decided 

“research indicates that the estimate of 280 words per page is too high” and that “250 words per 

page is closer to the mark.” See Judge Steven M. Colloton, Chair Advisory Committee on 

Appellate Rules, Memorandum, “Report of Advisory Committee on Appellate Rules” (May 8, 

2014, revised June 6, 2014) at 4 (“May 8 Committee Report”). 

To test the Committee’s premise, the Section has conducted its own study of briefs filed 

in the United States Courts of Appeals prior to the 1998 rule change that replaced page limits in 

briefs with word limits. The results of this study demonstrate that the average words per page in 

these briefs was 294 words per page—exceeding the 250 words per page the Committee now 

advocates and even the 280 words per page actually used at the time of the 1998 rule 

amendments. That study (the “2015 Study”) is attached as Appendix A. 
2 

Previously, members of the Section had conducted a similar, but more thorough study in 

2012, when the Texas Rules of Appellate Procedure were being amended to convert page limits 

to word limits. That study examined 63 briefs in which the Texas Rules of Appellate Procedure 

created very short page limits of either 8 or 15 pages. The results of that study were that the 

documents averaged 291 words per page. If the single highest and single lowest numbers were 

eliminated, the average was 293 words per page. That study (the “2012 Study”) is attached as 

Appendix B. At the time of the 2012 conversion from page to word limits, the Texas Supreme 

Court adopted a conversion ratio of 300 words per page. 

Both these studies are described in greater detail below. Both studies support word-perpage conversion ratios between 290 and 300 words per page. Neither supports a word-per-page 

conversion ratio of 250 words per page. 

Analysis of the 2015 Study 

The Federal Rules of Appellate Procedure were amended in 1998 to change the page 

limits on principal briefs and reply briefs to word limits. The 2015 study had to rely on locating 

attorneys who had retained hard copies of their briefs for approximately seventeen years. In that 

time, most law firm had changed their word processing and operating system programs so that 

most attorneys no longer had access to electronic versions of briefs from the era. Because of the 

difficulty in locating briefs that were at least seventeen years old, the sampling ended up being 

fairly limited. Nevertheless, the Section was able to locate 15 briefs that predated the 1998 rule 

change. 

The original object of the study was to gather briefs that were 50 pages in length (or 

more) because it was thought those briefs would probably reflect the attorneys’ attempt to put as 

many words on the page as possible. That task proved too difficult, given the passage of time and 

the fact that attorneys apparently used the full 50 pages only if it was absolutely necessary. As a 

result, around 60% of the briefs were nearly 50 pages or longer. The rest varied between 39.81 

pages and 48.85. 

The study demonstrates no briefs had as few words per page as 250—the number the 

1993 study found was the average. Instead, the fewest number of words per page was 263. The 

maximum number of words per page was 336. If the words per page are averaged over the 15 

briefs, the average equals 294 words per page. That number exceeds the 280 words per page 

adopted in the 1998 amendments to the Federal Rules of Appellate Procedure, and it far exceeds 

the 250 words per page being suggested in the current proposed amendments. 

Analysis of the 2012 Study 

The 2012 study was compiled by Marcy Greer, currently at the law firm of Alexander 

Dubose Jefferson & Townsend. Ms. Greer was at Fulbright & Jaworski when the study was 

conducted. In 2012, the Texas Supreme Court was considering adopting word limits to replace 

the page limits that had previously been in place. The Texas Supreme Court was considering a 

word-per-page conversion of 300 words per page. Thus, briefs previously subject to a 50 page 

limit would be limited to 15,000 words. 
3 

The object of the 2012 study was to examine the number of words per page allowed in 

the shorter briefs filed with the Texas Supreme Court. The Texas Rules of Appellate Procedure 

create a multi-stage process for obtaining Texas Supreme Court review, somewhat akin to the 

petition for certiorari process in the United States Supreme Court. The initial filing in the Texas 

Supreme Court is a petition for review. The petition for review and response were limited to 15 

pages. The reply brief was limited to 8 pages. Mandamus proceedings to the Texas Supreme 

Court were similarly limited in their first sets of filings. Only if the Texas Supreme Court calls 

for further briefing would the parties be allowed to file their full briefs. Those full briefs were 50

pages for the petitioner’s and respondent’s briefs and 25 pages for the reply brief using 13-point 

font. 

The 2012 study included 63 briefs and showed the average words per page was 291. If 

the single highest and lowest numbers were excluded (385 words/pg. and 90 words/pg.) the 

average was 293 words per page. Twenty-eight of the 63 briefs had 300 words or more per page, 

while only 4 of the 63 briefs had 250 words or fewer per page. 

As with the 2015 study, the 2012 study supports a word-to-page ratio of 300 words per 

page. It certainly supports a ratio of at least 280 words per page. It does not support a ratio of 250

words per page. 

Conversion of Pages to Word Count – Rules 5, 21, 27, 35, 40 

 The Section does not oppose the proposed amendments to these rules insofar as they 

propose to convert the current page limitations to word limitations. However, as with the current 

rules for briefs—Rules 28.1 and 32—the conversion factor should be based on at least 280 words 

per page. Although the Section has not conducted a comprehensive study on these types of 

motions, I recently assisted in filing a response to a motion to stay injunction in the Fifth Circuit 

in Cause No. 14-41384, Retractable Technologies, Inc. et al. v. Becton Dickinson and Company. 

That response was a full 20 pages long (in 14-point font) and was 5,808 words total. That 

calculates out to 290 words per page. Although this is a single example, it serves to show that a 

conversion of at least 280 words per page remains appropriate for the amendments to be made to 

Rules 5, 21, 27, 35, and 40. 

Overall Comments Regarding Proposed Amendments on Length Limits 

The Section joins the sentiments of the other organizations filing comments that the 

current word limits should not be reduced. Cases now tend to be complicated and can involve 

very high damages awards. In March 2014, the National Law Journal compiled a list of the top 

100 verdicts in 2013. See National Law Journal, Top 100 Verdicts of 2013 (March 24, 2014), 

http://www.nationallawjournal.com/id=1202647966490/Top-100-Verdicts-of-2013?slreturn= 

20150026124728. That National Law Journal report reveals that the top 100 verdicts of 2013 

ranged from $20 million to more than $1.2 billion. Nearly a quarter of the cases on that list (23) 

were in federal district courts throughout the nation. Many were intellectual property cases; some 

were antitrust; others ranged from breach of contract to employment issues. 
4 

This is just an example of the types of cases that are being appealed now. Attorneys 

should not be forced to go through the difficult procedure that exists in some courts to file longer 

briefs. For example, Fifth Circuit Local Rule 32.4 provides: 

32.4 Motions for Extra-Length Briefs. A motion to file a brief in excess of the 

page length or word-volume limitations must be filed at least 10 days in advance 

of the brief’s due date. The court looks upon such motions with great disfavor and 

will grant them only for extraordinary and compelling reasons. If a motion to file 

an extra-length brief is submitted, a draft copy of the brief must be submitted with 

the motion. 

Attorneys should not have to go through a process like this when there is nothing wrong 

with the current limitations. As shown in these comments, the 1993 analysis does not accurately 

reflect the word count per page in many of the briefs being filed under the pre-1998 Rules of 

Appellate Procedure. 

Conclusion 

 The Section recommends retaining at least the current word count for briefs in Rules 28.1 

and 32 and further recommends that pages be converted to word counts for Rules 5, 21, 27, 35, 

and 40 assuming at least a 280 word per page conversion ratio. 

State Bar of Texas Appellate Section 

Cynthia K. Timms 

Chair 
Appendix A
1 

Style Cause 

No. 

Nature of Brief 

Page Count1

Word Count 

Words/ Page 

Attorneys of Record 

In re Duval County Ranch Co./ Manges v. Atlas 

95-40582 95-40584 5th Cir. 

Appellee 39.81 11,374 286 Harry M. Reasoner, 

H. Ronald Welsh, Marie R. Yeats; Evelyn H. Biery 

Arleth v. FMP Operating Co. 92-3313 

5th Cir. 

Appellee/ CrossAppellant 

44.54 14,980 336 Marie R. Yeats, J. 

Harrell Feldt; Dermot S. McGlinchey, Craig L. Caesar 

Crowe v. Smith 96-30851 

5th Cir. 

Appellant 39.54 13,129 332 Harry M. Reasoner, 

Marie R. Yeats; Emmett C. Sole; Gary V. Dixon; William E. O’Brian, Jr. 

General Accident Ins. Co. v. Enserch Corp. 

90-1649 5th Cir. 

Appellant 59.19 19,027 321 Harry M. Reasoner, 

David H. Brown, Marie R. Yeats; Robin P. Hartmann, Werner A. Powers, Noel M. Hensley 

Mitchell Energy Corp. v. Samson Resources Co. 

95-40204 5th Cir. 

Appellants 49.92 13,999 280 Morris Harrell, Joe E. 

Staley, Jr., Michael V. Powell; Luther H. Soules, III 

1 This Study assumed 26 lines per page. Decimals indicate the last page is a partial one. The decimal was calculated by divi

lines by 26. 
2 

Style Cause 

No. 

Nature of Brief 

Page Count1

Word Count 

Words/ Page 

Attorneys of Record 

The Scottish Heritable Trust, PLC v. Peat Marwick Main & Co. 

94-10952 5th Cir. 

Appellants 49.92 14,003 281 Morris Harrell, 

Timothy W. Mountz, Cynthia Keely Timms 

The Scottish Heritable Trust, PLC v. Peat Marwick Main & Co. 

94-10952 5th Cir. 

CrossAppellees/ Response 

50 14,535 291 Morris Harrell, 

Timothy W. Mountz, Cynthia Keely Timms

The Scottish Heritable Trust, PLC v. Peat Marwick Main & Co. 

94-10952 5th Cir. 

Appellee/ CrossAppellant 

50 15,322 306 Dale A. Cooter, 

James E. Tompert 

Tarrant Distributors, Inc. v. Heublein, Inc. 

96-21156 5th Cir. 

Appellant 37.08 11,772 317 Alan Wright, 

LaDawn H. Conway 

Smith v. Smith 96-10999 

5th Cir. 

Appellant 51.58 13,616 264 Sharon N. Freytag; 

Todd H. Tinker 

Marchman v. NationsBank of Texas, N.A. 

95-11209 5th Cir. 

Appellee/ CrossAppellant 

41.5 13,169 317 Benjamin H. 

Davidson II; William C. Madison, Eliza Stewart 

Weber v. Trinity Meadows Raceway, Inc. 

96-10916 5th Cir. 

Appellees 49.54 13,505 273 Frederick W. 

Addison, III; Elizabeth E. Mack; Terry Gardner 

SportsBand Network Recovery Fund, Inc. v. PGA Tour, Inc. 

96-11164 5th Cir. 

Appellants 49.42 12,977 263 Frederick W. 

Addison, III; Elizabeth E. Mack 

BancAmerica Commercial Corp. v. Trinity Indus., Inc. 

95-3385 10th Cir. 

Appellants 49.62 13,452 271 Frederick W. 

Addison, III; Elizabeth E. Mack 
3 

Style Cause 

No. 

Nature of Brief 

Page Count1

Word Count 

Words/ Page 

Attorneys of Record 

BancAmerica Comm. Corp. v. Trinity Indus., Inc. 

95-3385 10th Cir. 

Cross Appellee Response and Reply 

48.85 13,139 269 Frederick W. 

Addison, III; Elizabeth E. Mack 

AVERAGE 294 
Appendix B
Style Cause No. Nature of Document

Page Count

Word Count

Words/ Page

Attorneys of Record (Not 

Necessarily Complete)

LC

Carol Ernst v. Merck & Co., Inc. 10-0006 Response to Petition 15 4,923 328 Katherine Mackillop F

Paradigm Geophysical Ltd. v. Geophysical Micro Computer Applications (Int'l) Ltd. 01-1201 Petition for Review 15 4,855 324 Ben Taylor F

Paradigm Geophysical Ltd. v. Geophysical Micro Computer Applications (Int'l) Ltd. 01-1201 Reply Petition for Review 2 179 90 Ben Taylor F

Paradigm Geophysical Ltd. v. Geophysical Micro Computer Applications (Int'l) Ltd. 01-1201 Motion for Rehearing 7 2,263 323 Ben Taylor F

Zachary Constr. Corp. v. Texas A&M Univ. 07-1050 Petition for Review 15 4,567 304 Ben Taylor F

Zachary Constr. Corp. v. Texas A&M Univ. 07-1050 Reply Petition for Review 8 2,694 337 Ben Taylor F

Zachary Constr. Corp. v. Texas A&M Univ. 07-1050 Motion for Rehearing 15 4,128 275 Ben Taylor F

Francisco Boada v. Tenet Hosps. Ltd. 10-0172 Response to Petition 15 4,131 275 Marcy Greer FFarmers Group, Inc. v. Jan Lubin 05-0169 Petition for Review 15 4,722 315 Marcy Greer FFarmers Group, Inc. v. Jan Lubin 05-0169 Reply Petition for Review 8 2,227 278 Marcy Greer F

Farmers Group, Inc. v. Sandra Geter 07-0707 Petition for Review 15 4,369 291

Marcy Greer/ 

Katherine Mackillop F

Farmers Group, Inc. v. Sandra Geter 07-0707 Reply Petition for Review 8 2,540 318

Marcy Greer/ 

Katherine Mackillop F

Universal Health Services, Inc. v. Renaissance Women's Group, P.A. 02-0193 Petition for Review 15 4,494 300 Marcy Greer/Doug Alexander

FD

Universal Health Services, Inc. v. Renaissance Women's Group, P.A. 02-0193 Reply Petition for Review 7 2,124 303 Marcy Greer/Doug Alexander

FD

Power Resource Group, Inc. v. Public Utility Commission of Texas 02-0167 Response to Petition 15 4,674 312 Marcy Greer F

In re Allied Chemical Corp. 09-0106 Mandamus Petition 15 3,909 261 Rosemarie Kanusky F

In re Allied Chemical Corp. 09-0106 Mandamus Reply 8 2,170 271 Rosemarie Kanusky F

In re Emeritus Corp. 05-0726 Mandamus Petition 15 3,926 262 Rosemarie Kanusky F

In re Emeritus Corp. 05-0726 Mandamus Reply 8 2,048 256 Rosemarie Kanusky F

Trammell Crow Central Texas Ltd. v. Maria Gutierrez 07-0091 Petition for Review 18 3,906 217 Rosemarie Kanusky F

Trammell Crow Central Texas Ltd. v. Maria Gutierrez 07-0091 Reply Petition for Review 9 1,955 217 Rosemarie Kanusky F

In re Allied Chemical Corp. 09-0264 Mandamus Petition 15 4,008 267 Rosemarie Kanusky F

In re Allied Chemical Corp. 09-0264 Mandamus Reply 8 2,200 275 Rosemarie Kanusky F

The City of Round Rock Texas and Round Rock Fire Chief Larry Hodge v. Jaime Rodriguez and Round Rock Fire Fighters Ass'n 10-0666 Petition for Review 15 4,823 322 Doug Alexander A

Lou Ann Smith et al. v. Black+Vernooy Architects et al. 11-0731 Petition for Review 15 4,229 282 Doug Alexander A

Edwards Aquifer Auth. v. Burrell Day 08-0964 Motion for Rehearing 15 5,478 365 Pam Baron/Drew Miller P

Wagner Oil Co. v. Vaquillas Ranch Co. 09-0399 Petition for Review 15 4,848 323 Pam Baron/Michael McElroy

PM

Wagner Oil Co. v. Vaquillas Ranch Co. 09-0399 Reply Petition for Review 8 2,520 315 Pam Baron/Michael McElroy

PM

Parsons v. Turley 11-0338 Petition for Review 18 4,431 246 Kurt Kuhn K
Parsons v. Turley 11-0338 Reply Petition for Review 11 2,288 208 Kurt Kuhn K

TracFone Wireless, Inc.v. Commission on State Emergency Communications 11-0473 Petition for Review 15 4,156 277 Reagan Simpson/Chris Ward

YD

TracFone Wireless, Inc.v. Commission on State Emergency Communications 11-0473 Reply Petition for Review 8 2,538 317 Reagan Simpson/Chris Ward

YD

City of Houston v. Hotels.com, L.P. 12-0066 Response to Petition 15 5,777 385

David Keltner & Brian Stagner/Kelly Stewart K

Carolee Oakland v. Travelocity.com Inc. 09-0811 Response to Petition 14 3,957 283

Brian Stanger/Derek Montgomery K

In re Bank of America, N.A. 12-0178 Mandamus Petition 15 4,624 308 Karen Precella H

In re Bank of America, N.A. 12-0178 Mandamus Reply 8 2,425 303 Karen Precella H

Larry T. Long v. RIM Operating, Inc. 11-0485 Petition for Review 15 4,188 279

Franklin Honea/Skip Watson & Mike Hatchell

LHL

Larry T. Long v. RIM Operating, Inc. 11-0485 Reply Petition for Review 8 2,330 291

Franklin Honea/Skip Watson & Mike Hatchell

LHL

Homer Merriman v. XTO Energy Inc. 11-0494 Response to Petition 15 4,185 279 Skip Watson & Mike Hatchell L

Homer Merriman v. XTO Energy Inc. 11-0494

Response to Motion for Rehearing 12 3,354 280 Skip Watson & Mike Hatchell L

Vinson Materials, Ltd. v. XTO Energy Inc. 11-0035 Response to Petition 15 4,445 296

David Skeels/Skip Watson & Mike Hatchell

FCL

Cameron International Corporation v. Vetco Gray Inc. 09-0397 Petition for Review 12 3,527 294 Russell Post & David Gunn

BL

Cameron International Corporation v. Vetco Gray Inc. 09-0397 Reply Petition for Review 8 2,418 302 Russell Post & David Gunn

BL

Dynegy, Inc. v. Terry W. Yates 11-0541 Petition for Review 15 4,889 326 Russell Post/Bruce Oakley 

BL

Dynegy, Inc. v. Terry W. Yates 11-0541

Response on Conditional Cross-Petition 15 4,743 316 Russell Post/Bruce Oakley 

BL

Dynegy, Inc. v. Terry W. Yates 11-0541 Reply Petition for Review 8 2,575 322 Russell Post/Bruce Oakley 

BL

James B. Harris v. Gordon R. Cooper, II 11-0060 Response to Petition 11 3173 288 Russell Post & Erin Huber

BL

In re Laura Russell and Brenda Volk 10-0485 Mandamus Petition 10 2,865 287

Russell Post & Douglas Pritchett

BL

In re Laura Russell and Brenda Volk 10-0485 Mandamus Reply 5 1,508 302

Russell Post & Douglas Pritchett

BL

Regal Finance Company, Ltd. v. TexStar Motors, Inc. 08-0148 Petition for Review 15 4,687 312

David Beck, Russell Post & David Gunn

BL

In re Stephanie Lee 11-073 Mandamus 12 3,166 264 Scott Rothenberg

LR

Spir Star AG v. Louis Kimich 07-0340 Response to Petition 15 4,244 283 Scott Rothenberg

LR

U-Haul International, Inc. v. Talmadge Waldrip 10-0781 Petition for Review 15 4,630 309

David Keltner/Thomas Leatherbury & Lisa Hobbs K
U-Haul International, Inc. v. Talmadge 

Waldrip 10-0781 Petition for Review 8 2,745 343

David Keltner/Thomas Leatherbury & Lisa Hobbs K

In re Petrohawk Energy Corporation 10-0528 Mandamus Petition 15 4,746 316

J. Robert Beatty/Marie Yeates & Gwen Samora & Lisa Hobbs

LL

In re Petrohawk Energy Corporation 10-0528 Mandamus Reply 8 2,743 343

J. Robert Beatty/Marie Yeates & Gwen Samora & Lisa Hobbs

LL

Thomas Petroleum, Inc. v. Gregory Morris 11-0548 Response to Petition 12 2,780 232

Rhonda Wills/Richard Hogan & Jennifer Hogan W

In re QualitySafety Systems Company 10-0984 Mandamus Petition 15 4,340 289

Jack Little/Richard Hogan & Jennifer Hogan

WL

In re Valero Energy Corporation 11-0138 Mandamus Petition 15 4,400 293

Steven Rech/Richard Hogan & Jennifer Hogan

SO

Enterprise Products Partners LP v. Catherine Mitchell 11-0366 Response to Petition 15 4,296 286

Nick Nichols/Richard Hogan & Jennifer Hogan

ASF

Conex International Corporation v, Fluor Enterprises, Inc. 09-0199 Petition for Review 15 4,439 296

Randal Cashiola/Richard Hogan & Jennifer Hogan

CCH

Microtherm, Inc. v. Dana Corporation 10-0126

Conditional Petition for Review 15 4,253 284

Thomas Phillips/Richard Hogan & Jennifer Hogan

BH

Sanguine Gas Exploration LLC v. Expro Americas, LLC 11-0974 Petition for Review 15 4,275 285

James Tompkins/Jennifer Hogan & Richard Hogan

GB

AVERAGE: 291 words per page
TAB 3

David H. Tennant, Esq., Co-chair of the 

Appellate Rules Committee of the 

American Bar Association’s

Council of Appellate Lawyers
4823-7287-4785.1

THE COUNCIL OF APPELLATE LAWYERS 

AMERICAN BAR ASSOCIATION

JUDICIAL DIVISION

APPELLATE JUDGES CONFERENCE

Testimony on Proposed Amendments to the 

Federal Rules of Appellate Procedure

Before the Advisory Committee on Appellate Rules

February 17, 2015

Statement of Interest

The Council of Appellate Lawyers (“The Council”) is part of the Appellate Judges 

Conference of the American Bar Association’s Judicial Division. It is the only 

nationwide Bench-Bar organization devoted to appellate practice. We appreciate the 

opportunity to address the Advisory Committee on Appellate Rules concerning the most 

recent proposed amendments to the Federal Rules of Appellate Procedure. The views 

we express today are solely those of The Council and have not been endorsed by the 

Appellate Judges Conference, the Judicial Division, or the American Bar Association. 

Our testimony is focused on the proposed length limits in Appellate Rule 32 and the 

related proposed changes to Appellate Rules 5, 21, 27, 28.1, 35, and 40. We have no 

objection to the amendments proposed to other rules.

Testimony on Length Limits 

The Council respectfully opposes the proposed amendments to Rule 32 that would 

reduce a principal brief from 14,000 words to 12,500 and a reply brief from 7,000 to 

6,250 words. The proposed change is not supported by any currently stated need. The 

Advisory Committee has not identified any problems with the present length of 

appellate briefs. Indeed, many state appellate courts permit the same or longer briefs, 

either with express type-volume limits that track the federal rules,1 generous word or 

 

1 See, e.g., California Court of Appeal, Cal. Rules of Court Rule 8.204(c) (14,000 words for 

computer-produced brief, 50 pages for typewritten brief); New York State Supreme Court 

Appellate Division, 22 N.Y.C.R.R. §§ 600.10(d)(1) (First Department) (70 pages or 14,000 words 

for principal brief and 35 pages or 7,000 words for reply brief); 670.10.3(a)(3) (Second 

Department) (14,000 words for principal brief, 7,000 words for reply brief); Pa. R.A.P. Rule 2135 

(14,000 words for principal brief and 7,000 words for reply brief). 
2

page limits,2 or even briefs with no restriction by page or word count.3 Federal circuit 

courts, and the counsel who regularly handle federal appeals, have fifteen years of 

experience with the current federal type-volume rule. We are unaware of any problems 

in the length of appellate briefs being submitted today in federal circuit courts (or state 

courts applying those same standards). 

While everyone can appreciate better focused and less repetitive briefs, the word count 

rule is not an effective enforcement mechanism to achieve those ends.4 An 

inexperienced or unskilled brief writer will commit the same mistakes in 12,500 words 

as in 14,000. As one prominent appellate lawyer commented, “we’ll just see slightly 

shorter bad briefs.”5 At the same time:

[L]awyers and litigants in cases that really do warrant more extensive 

briefing will be frustrated, having spent extra time and money to explain 

why they need permission to file oversize. The benefit’s not worth the 

burden on this one.6

Ironically, the proposed rule change will penalize knowledgeable lawyers who need 

adequate space to brief appeals that present complex facts or issues as well as appeals 

following lengthy trials and appeals involving multiple parties. (See submission of 

American Academy of Appellate Lawyers, dated November 11, 2014 at 2-6.) 

 

2 See, e.g., California Supreme Court, Cal. Rules of Court Rule 8.520(c) (14,000 words for 

computer-produced principal brief and 8,400 words for reply brief, 50 pages for typewritten 

principal brief and 30 pages for reply brief; 2,800 words for supplemental brief presenting new 

matter if computer-produced and 10 pages if typewritten); New York State Supreme Court 

Appellate Division, 22 N.Y.C.R.R. §§ 800.8(a) (Third Department) (70 pages for appellant’s brief, 

35 pages for respondent’s brief, and 25 pages for reply); 100.4(f)(3) (Fourth Department) (70 

pages for principal brief and 35 pages for reply brief); Tex. R. App. P. 9.4(i)(2)(B)-(C) (15,000 

words for principal brief and 7,500 words for reply brief if computer-generated, 50 pages and 25 

pages if not). See, e.g., New York State Supreme Court Appellate Division, 22 N.Y.C.R.R. §§ 

800.8(a) (Third Department) (70 pages for appellant’s brief; 35 pages for respondent’s brief and 

25 pages for reply); 100.4(f)(3) (Fourth Department) (70 pages for principal brief and 35 pages 

for reply).

3 See., e.g., New York Court of Appeals, 22 N.Y.C.R.R. § 500.1 (providing for 14-point type but no 

limit on brief length).

4 Some repetition is bound to occur in federal appellate briefs due to the requirements of 

statement of issues, case summary, summary of argument, and argument, and the frequent 

practice of including a request for argument as well as an “introduction” that previews or 

distills the argument.

5 Lisa Perrochet, Horvitz & Levy, Encino, California (comments on ABA Appellate Forum Linkedin page). Ms. Perrochet, as Chair of the Rules and Law Subcommittee of the Los Angeles County 

Bar Association’s Appellate Courts Section, submitted a comment to this Committee on January 

26, 2015, available at http://www.regulations.gov/#!documentDetail;D=USC-RULES-AP-2014-0002-0018.

6 L. Perrochet, ABA Appellate Forum Linked-in page.
3

The justifications offered in support of the rule change are not persuasive. The history 

underlying the adoption of the type-volume standard in Rule 32 in 1998 shows that the 

14,000 word count limit was accurately derived from word-processed and professionally 

printed documents that carry 280 (or more) words per page—in contrast to monospaced, 

typewritten briefs that carry 250 words per page. Moreover, any proposed changes to 

Rule 32 should be based on current considerations rather than on some concept of a 

historical “correction.” No such present need has been demonstrated. 

A. The History of the 1998 Amendments to Rule 32 Shows That the 14,000 

Word Count Limit Was Adopted Based on an Accurate Understanding of 

the Number of Words Per Page on A Word-processed or Professionallyprinted Brief Using Proportionally Spaced Fonts.

The record shows that Rule 32’s 14,000 word count limit was based on modern wordprocessing and printing capabilities that produce at least 280 words per page using 

proportionally spaced fonts. The relevant history is laid out in a memo entitled a “short 

history of the 1998 amendment to Rule 32” prepared by the Advisory Committee.7

Among the key steps mentioned in that memo, the Advisory Committee received 

presentations from Microsoft and printing experts in 1994 that detailed the variability 

in word count per page, specifically noting that a typewritten 50-page brief with a 

monospaced font would have 12,500 words, whereas a 50-page brief produced on a 

computer, with a proportionally spaced font, “can greatly exceed 14,000 words.”8 In 

1995, the Advisory Committee received information that a professionally printed 50-

page brief, as filed in the Supreme Court of the United States, contained on average 

280 words per page.9 Judge Easterbrook, who served as liaison to the Appellate Rules

Committee, has confirmed that Rule 32’s type-volume limitation was an informed, 

reasoned decision that considered 280-words-per-page to be the proper standard in 

keeping with professionally printed briefs in the Supreme Court.10

The Advisory Committee’s “short history” shows that the 12,500 word count yield for a 

50-page brief was specifically tied to monospaced typewritten documents that were 

already outmoded in 1998. There thus was no “conversion error” in assigning 280 words 

per page for briefs with proportionally-spaced, word-processed text, or briefs printed 

professionally. The current proposal to reduce the word count limit from 14,000 to 

 

7 Catherine T. Struve, Memorandum, “a short history of the 1998 Amendment to Rule 32” 

(October 3. 2014), reproduced in the agenda materials for the Advisory Committee‘s October 20, 

2014 meeting at 73-79 (Item No. 12-AP-E (length limits)). 

8 Id. at 2.

9 Id. at 3.

10 Hon. Frank H. Easterbrook, Comment posted September 11, 2014, available at 

http://www.regulations.gov/#!documentDetail;D=USC-RULES-AP-2014-0002-0006.
4

12,500 words is on the wrong side of history and technology by three decades or more—

the amount of time since briefs were routinely prepared on typewriters.11

B. Modern Appellate Practice Requires a Word Count Limit That Fits the 

Times. 

No matter what historical surveys might show, they do not speak to current needs. 

Identifying a purported mathematical error that occurred fifteen years ago does not 

provide a sound basis to change current policy and practice. Indeed, given the passage 

of time and absence of problems in the intervening decade and a half, reliance interests 

would seem to predominate over more formalistic interests in correcting the supposed 

historical conversion error. A retrospective, academic correction cannot account for 

current briefing needs. Oral argument is becoming rarer and shorter in federal 

appellate courts, and the briefs are now often the only opportunity for lawyers to 

advocate on behalf of their clients. At the same time, as litigation grows more complex, 

many appeals also are becoming increasingly complicated, involving complex facts, 

extensive records, multiple parties with attendant multiplication of issues and 

sometimes multiple briefs, participation of amici curiae raising additional points that 

must be addressed, and difficult legal issues, including matters of first impression 

requiring surveys of the law and public policy considerations. Appeals from trials often 

strain word count limits given the lengthy record and the tendency of the losing side to 

raise a host of issues in the conduct of the trial. Requiring advocates to seek additional 

briefing space to deal with these complications—space that may not always be 

forthcoming from court personnel, individual judges or motions panels unfamiliar with 

the merits of the case—would add a needless layer of motion practice to many appeals 

with attendant time, expense, and uncertainty. Instead of a clear 14,000 word count 

rule that has been demonstrated to be workable in the vast majority of cases over the 

past fifteen years, the proposed amendment seeks to impose a materially reduced word 

 

11 The Minutes of the Spring 2014 Meeting of the Advisory Committee on Appellate Rules (April 

28 and 29, 2014) state that:

While deliberating over the formulae to use when converting existing pages limits into typevolume limits, the Committee became aware that the premise of the 1998 amendments –

namely that one page was equivalent to 280 words – appears to have been mistaken. Based 

on earlier research by Mr. [Doug] Letter on behalf of the D.C. Circuit’s rules committee, a 

better estimate appears to be 250 words per page, which would have translated into a brief 

length limit of 12,500 words.

Catherine T. Struve, Reporter, Item No. 12-AP-E (length limits) Spring Meeting Minutes April 

28 and 29, 2014) at 5-6; id. at 7 (“Mr. Letter noted that his belief that the choice of 280 words 

per page as the conversion formula in connection with the 1998 amendments had indeed been a 

mistake”). This brief discussion, which is the Advisory Committee’s only 2014 analysis of the 

1998 word count limit, does not square with the “short history” noted above. The Advisory 

Committee adopted the 14,000 word count limit in 1998 based on the documented difference 

between monospaced and proportionally spaced fonts and the different yields between 

typewritten briefs (12,500) and word-processed or professionally printed briefs (14,000). There 

was no mistake.
5

count without study or discernment of the expected negative consequences, or weighing 

those against the proposed benefits of reducing the word count. 

The current 14,000 word count limit in Rule 32 fits the needs of experienced appellate 

practitioners and should be maintained. The Council surveyed its members and the 

responses overwhelmingly favored maintaining the current word count.

To the extent that circuit judges are finding briefs lengthened by lack of focus or 

unnecessary repetition, courts might find it desirable to encourage additional training 

for appellate lawyers or the creation of briefing materials for the benefit of counsel 

stating specifically the preferred way to advocate before them. The Advisory 

Committee might also consider eliminating the requirement of a summary of argument 

or otherwise altering the structure of briefs to try to improve their quality and lessen 

the occurrence of repetition. Another step that would aid readability of appellate briefs 

would be to adopt modern typography principles as set forth in Matthew Butterick’s 

Typography for Lawyers (2010). Briefs would be easier to read—and shorter—if the font 

size and leading (the space between lines) were reduced. Briefs would also be more

reader-friendly if margins were increased. The Council suggests that these and other 

educational and formatting issues be explored. 

Conclusion

In sum, the Council of Appellate Lawyers respectfully requests the Advisory Committee 

on Appellate Rules to reconsider its position on the length of federal appellate briefs 

and other documents and to retain the current word count limits under Rule 32 

providing for 14,000 word principal briefs and 7,000 word reply briefs.

The Council of Appellate Lawyers

Bradley S. Pauley

Chair

Deena Jo Schneider

David H. Tennant 

Co-chairs, Rules Committee
TAB 4

James Pew, Esq., 

Earthjustice
TESTIMONY OF JAMES S. PEW, EARTHJUSTICE, ON PROPOSED AMENDMENTS 

TO THE FEDERAL RULES OF APPELLATE PROCEDURE

INTRODUCTIION

I am an attorney at Earthjustice, a non-profit public interest law firm representing more 

than 1,000 different clients, including national, regional and local environmental organizations, 

Native American Tribes, civil rights and environmental justice organizations, farmworkers’ 

organizations, fishermen’s organizations, scientists, and health care workers. Earthjustice

employs 93 attorneys, and has an average caseload of 300 cases, many of which are in the 

federal courts of appeals. The majority of my cases are in the D.C. Circuit.

I very much appreciate the opportunity to present testimony on the proposed changes to 

the Federal Rules of Appellate Procedure. I respectfully urge the Advisory Committee not to 

adopt the proposed changes to the word limits for appellate briefs and to the rules regarding the 

computation and extension of time.

I. THE COMMITTEE SHOULD NOT ADOPT THE PROPOSED CHANGES TO 

THE WORD LIMITS FOR APPELLATE BRIEFS IN RULE 32.

The proposed changes to Rule 32 would shorten the length for opening briefs from 

14,000 words to 12,500 words and the length for reply briefs from 7,000 words to 6,250 words. 

Because brief lengths in appellate court are often shortened to these lengths (and shorter lengths) 

in multiparty cases already, I have experience with these lower word limits. As explained in 

detail below, they present a dilemma: drop valid claims or raise them in such an abbreviated 

form as to risk losing the claim and making bad law. This dilemma is especially pointed in cases 

involving review of governmental agency action, many of which are heard for the first (and only) 

time in the federal courts of appeals. See, e.g. 42 U.S.C. § 7607(b) (providing that petitions for 

review of many final actions taken by the Environmental Protection Agency under the Clean Air 

Act must be brought in the D.C. Circuit). In these cases, a decision not to raise a valid claim – or 

the failure to adequately brief a valid claim – can have long term adverse impacts not only on a 

litigant but on the public.

Cases seeking judicial review of agency action often involve complex government 

regulations that impact not just the parties to the case but many regulated entities and the public 

at large. The records for judicial review in these cases are often extensive. Parties to these cases 

may have valid legal objections to numerous different parts of the regulation, each of which 

needs to be evaluated separately. To fully protect their clients in these cases, attorneys often need 

to be able to present claims on multiple claims involving complex technical issues to the Court. 

The proposed reduction in the word limits would affect attorneys’ ability to bring important 

issues before the courts and to successfully challenge unlawful action.

In these multiparty cases, petitioners with different (and often adverse) interests present 

different and conflicting claims to the court. In environmental cases, for example, courts may be 
2

presented with arguments by regulated entities who claim that a regulation is too stringent and by 

environmental groups who claim it is insufficiently stringent. See National Ass’n of Clean Water 

Agencies v. EPA, 734 F.3d 1115 (D.C. Cir. 2013). In such cases, the D.C. Circuit typically 

receives two or more petitioner briefs. See id. Faced with multiple briefs, the D.C. Circuit usually 

reduces the number of words that can be raised in any individual brief to between 10,000 and 

12,000 words.

These shortened word limits force attorneys to choose between dropping valid claims and

raising arguments too briefly. In judicial review cases, courts generally defer to agency statutory 

interpretations so long as they do not contravene Congress’s plainly expressed intent and are 

reasonable. See Chevron v. NRDC, 467 U.S. 837, 842 (9184). Similarly, they defer to agencies’ 

factual determinations so long as they are not arbitrary and capricious. See Motor Vehicle Mfrs. 

Ass’n v. State Farm Mut.Auto. Ins. Co., 463 U.S. 29, 43 (1983). Thus, petitioners in judicial 

arguments must be able to brief issues in their cases – issues that are often both complex and 

numerous – in sufficient detail to overcome significant deference. Notably, the D.C. Circuit has 

ruled that arguments raised too briefly are waived. See e.g., Sierra Club v. EPA, 167 F.3d 658, 

666 (D.C. Cir. 1999).

Even where the courts consider arguments that have not been fully developed in 

sufficient length, they may still reject such arguments just because the briefs did not make 

sufficiently clear that the government’s action was unlawful or arbitrary. Faced with the 

possibility of losing a claim (and potentially making bad law) because they do not have enough 

words to explain it fully, attorneys may be forced to refrain from bringing even valid claims.

The goal of inducing attorneys to present their claims succinctly is certainly worthwhile, 

but word limits should not act to cap the number of valid issues that parties can raise. In multiissue cases, however, the effect of the propose rule change will likely be to prevent parties from 

bringing valid claims. Such a result would not only be unfortunate from a public policy point of 

view but would undermine the purpose of statutory judicial review provisions by which 

Congress intended to provide fully for judicial review of agency actions.

Some may believe that if word limits are shortened, parties who truly need additional 

words can obtain them by submitting a motion to the court. As a practical matter, such motions 

are hardly ever granted. See D.C. Circuit Rule 28(e)(1) (“The court disfavors motions to exceed 

limits on the length of briefs, and motions to extend the time for filing briefs; such motions will 

be granted only for extraordinarily compelling reasons.”). Further, it is neither in the interest of 

litigants or judicial economy to create a situation in which parties are forced to file more frequent

motions to exceed.

Moreover, if the word limits are shortened as proposed, it is likely that courts will 

continue to shorten them further in multi-party cases. Thus, instead of reducing the word limit 

from 14,000 words to 11,200 words or 10,000 words – as the D.C. Circuit frequently does in 

such cases – courts are likely to reduce word limits in the future from 12,000 words to 10,000 

words or 8,000 words. It is understandable that courts would reduce word limits in multi-party 

cases; the amount of material that judges and clerks need to read increases substantially with 
3

each additional brief. However, the rationale for reducing word limits for each brief in these 

cases will not cease to exist just because the default word limit is reduced from 14,000 to 12,000.

II. THE COMMITTEE SHOULD NOT ADOPT THE PROPOSED CHANGES TO 

THE 3-DAY RULE.

The proposed changes would eliminate the 3-day rule, which adds 3 days to the period 

for submitting responses to motions and replies in support of motions. Under the proposed 

revisions, the period for responding to a motion would decrease from 13 days to 10 days, and the 

period for submitting a reply in support of a motion would decrease from 10 days to 7 days. The 

rationale underlying the proposed change is that the 3-day rule is relic from times when motions 

and responses were more often served by mail and that the additional 3 days are unnecessary 

when motions and responses are served electronically.

The practical effect of the proposed changes is to reduce the times for submitting 

responses and replies to a short period that will be, in many instances, inadequate. It will prevent 

attorneys from fully presenting their reasons for opposing (or supporting) a motion, leaving 

appellate courts to make less informed decisions. Further, it will force attorneys to seek 

extensions more often – a result that is not in the interests of judicial economy. And shortening 

the process of motions briefing by 3 or 6 days will not expedite the resolution of motions or 

cases to any significant extent.

The adverse impacts of the proposed changes are best understood in the context of 

dispositive motions (such as motions to dismiss) and motions to stay government regulations

pending judicial review. The courts’ rulings on such motions have major impacts on the rights 

and liabilities of the litigants. They can also have major impacts on the public. Granting a motion 

to stay government regulations that limit emissions of toxic pollution pending judicial review, for 

example, can result in a loss of life and other serious health impacts while the regulation is 

stayed. Likewise, granting a motion to stay a regulatory exemption pending judicial review could 

cause regulated entities to expend resources while the regulation is stayed. Plainly then, there is a 

strong public interest in allowing litigants time to fully develop their arguments for or against 

dispositive motions and motions to stay and in having courts be fully informed before making 

their decisions on such motions.

Under the proposed changes, responses to motions would be due within 10 calendar days. 

Thus, responses to a motion filed at 11pm on the Friday before a holiday weekend would be due 

the Monday after next – i.e., just 5 working days later. Where responses to a motion were filed 

on the Friday before a holiday weekend, a reply would be due the Monday after next – i.e., just 5 

working days later. These times are not sufficient to prepare responses or replies, especially 

where the motions at issue are dispositive motions or motions to stay. Even in the absence of an 

intervening holiday, the proposed revision would allow just 6 working days to respond to a 

motion filed on a Friday, and 5 working days for a reply to a response filed on a Friday. 

Nor is it the case that these shorter times always applied before the widespread adoption 

of electronic service. As explained in the Committee’s notes accompanying the 2009 

Amendments to Rule 26(a)(1), intermediate Saturdays, Sundays, and legal holidays were not

previously included in computing periods shorter than 11 days, as they are now. Thus, 
4

intermediate Saturdays, Sundays and legal holidays would not have been counted in computing 

either the 10-day response period for motions in Rule 27(a)(3)(A) or the 7-day period for replies 

in Rule 27(a)(4). Rather, under previous rules, a response to a motion filed on the Friday before a 

holiday weekend would have been due 16 calendar days (10 working days later) – even without 

an additional 3 days for service. Similarly, replies to a response filed the Friday before a holiday 

weekend would have been due 12 calendar days (7 working days) later without an additional 3 

days for service. In short, although the proposed rule change appears intended to restore the 

actual times that were provided for responses and replies before electronic service was available

and widely used, it actually provides times that are significantly shorter than were allowed under 

previous rules.