The practice of an appellate lawyer rises and falls with brief writing. Thorough brief writing is the key to winning cases and getting bad law overturned. But will the federal courts’ new lower word count limits weaken your brief or make you a sharper writer?
How do you write an appellate brief? What do you do to make sure your points are heard and understood? Are your briefs clear and concise or thorough and verbose?
Often, a well-written brief can sway judges and justices to your side and give you an easier time at oral argument. It can help judges frame the issue in a way that benefits your your client. But far too often, brief writers take a “kitchen sink” mentality, cramming as much as they can into the space they are allowed, and hoping that some of it sticks.
Current Word Limits Lead to Needlessly Lengthy Briefs
Since 1998, federal courts have had a 14,000 word limit on their appellate briefs. With an opening brief, opposition brief, and reply brief for each case, and approximately 1,200 cases a year, that means judges were reading 42 million words every 12 months.
That’s a lot of reading. It left some judges frustrated. Laurence H. Silberman, a judge for the United States Court of Appeals for the District of Columbia, said that 14,000 word “are too long to be persuasive.” He and others pushed to reduce the word count to eliminate briefs that are “needlessly lengthy.”
Starting December 1, 2016, appellate lawyers will need to do with a few less words. The new limit is 13,000 words per brief. And while judges have the ability to opt out of the requirement, many courts will be telling their attorneys to trim the fat.
Trimming Your Word Count
Many lawyers argued against the reduction in word count (which was originally 1,500 words). The American Academy of Appellate Lawyers said that as legal issues and statutes become more complex, they need the extra space to make compelling arguments.
As a blogger, I am all too familiar with word counts. An average blog contains between 500 and 1000 words – 1/14 the length of a current appeals brief. When you have to cram a lot of information in a small space, you learn some tricks:
Cut Out Filler Words
Appellate lawyers may be surprised how many words they use mean nothing at all. Simply replace bulky phrases like “in anticipation of” with “anticipating” or “the purpose of which was” with “for”. There are simpler ways to say things. By dropping filler words, you can tighten your writing.
Eliminate Unnecessary Background Information
Your case’s facts may be complicated, but your appeal doesn’t have to recap the entire trial. Eliminate unnecessary background information from your statement of facts. This will help judges focus on what is important while at the same time helping you make your word count.
Use Clear, Concise Issue Statements
By heading each section of your brief with a clear, concise issue statement, you can target your argument and do away with unnecessary steering language. If your judges already know where they are going, you don’t need to reiterate it and add unnecessary sentences to your word count.
Write It Out, Then Pare it Down
When you are staring at your word count you won’t do your best writing. Ignore the word count on the first draft and just write it out. Some of what you write will inevitably end up on the cutting room floor, but your best work will still be there, ready to be given a shave and a haircut and be sent out looking its best.
You don’t need 14,000 words to make a legal argument. By using good writing techniques you can make your points more clearly, concisely, and understandably and still duck in under the federal court’s new lower word limit.
Lisa Schmidt is a writer for Legal Linguist. She provides writing services for solo attorneys and small firms. If you have a brief that needs writing, contact Legal Linguist today to schedule a meeting.