Practitioners’ Reactions To Proposed Revisions To Supreme Court Rules

By Kevin Russell
on May 25, 2007 at 9:57 am

As Lyle noted this prior post, the Supreme Court has proposed amendments to its Rules governing practice before the Court. On Thursday, the Georgetown Supreme Court Institute convened a meeting of some of the local members of the Supreme Court bar to discuss the proposed amendments. We thought the readers of this blog might be interested in hearing some of the ideas and concerns expressed at the meeting.

In general, I got the sense that, with a couple exceptions, the participants found the proposed changes welcomed and reasonable. Most of the discussion centered on minor concerns with some of the details and ways in which the revisions could be improved.

This post will discuss the new word limits, font requirements and electronic filing. Future posts will discuss changes in the filing deadlines, new rules governing cert-stage amicus briefs, and revised disclosure rules for amicus briefs.

Word Count

One of the most significant changes in the proposed rules is a move from page to word limits. The basic idea of a word limit was generally applauded. Under the prior rules, counsel had an incentive to undertake various machinations to get more words within the page limits, all of which tended to make the brief less readable – e.g., moving text into footnotes (because the rules allow a smaller font for footnotes), decreasing the space between lines of text or between paragraphs, even stingy indentation of paragraphs to squeeze a few more words into the brief. No more. The proposed rules set clear word limits (and expressly provide that footnotes count toward it), as well as requiring a 12 point font in the text (the old rules allowed 11 point), which should tend to make the briefs generally easier to read. The new rules should also be easier for the Clerk’s Office to police.

The bigger cause for discussion was whether the Court set the word limits high enough. It is apparent that the word limits were calculated by multiplying the old page limits by 300 words per page. Various members of the group had gone back and done word counts on prior briefs to compare the number of words effectively allowed under the page limits with the new word limits. The general consensus was that it is pretty close. Some estimated that the word count effectively reduced the number of words allowed by a few percentage points.

Several in attendance expressed the view that the word limit seemed to be most restrictive with respect to reply briefs. Just how this could be so – given that the Court apparently just multiplied the current page limits for all briefs by 300 words – initially poses a bit of a mystery. Perhaps given the quite short page limits for reply briefs, counsel more often turn to the tricks outlined above to squeeze extra words per page into a reply brief.

Whatever the explanation, the word limits for reply briefs caused the most concern at the meeting. It was apparent that many have believed for some time that the Supreme Court’s limits (page or word) for reply briefs are too short. They pointed out that in the courts of appeals, a reply brief can be half the length of the briefs in chief, whereas the Supreme Court rules permit a reply of no more than one-third the length of the main briefs.

The limitations on the length of reply briefs (particularly at the merits stage) has become more problematic, many argued, in light of the increasing number of amicus briefs being filed. Several participants expressed the view that amicus briefs are becoming not only more numerous, but also longer. Moreover, because parties have been taking a more active role in coordinating amicus briefs in recent years, there is less overlap among amicus briefs than there used to be. The net result is that petitioners have much more to respond to in their reply briefs than they used to. A somewhat higher word limit, it was thought, might facilitate a more thorough discussion of the issues raised in those amicus briefs.

Font

There was also some discussion of the Court’s decision to mandate the use of a particular font: New Century Schoolbook. While no one seemed particularly critical of the look of this font, there was fairly widespread concern that the Court had chosen a font that does not come pre-installed on most people’s computers (Windows or Macintosh). The font can be purchased online for a small fee (see, for example, here and here). Firms and organizations frequently conducting business before the Court will have no problem adapting to the requirement, but participants were concerned that smaller firms and less frequent filers might find the rule difficult to comply with, adding potentially unnecessary confusion to a sometimes stressful process of finishing a brief and getting it filed.

In prior times, this would not have mattered because everyone would have hired a printer to typeset the brief from scratch, and it would be of no inconvenience to require printers to use a new font. Today, however, many litigants create their own camera-ready briefs using modern word processors and send a file ready for printing to a company that then simply prints the booklets. This greatly reduces the time and expense of printing briefs in booklet form. For that process to work, however, the practioners need to have the appropriate fonts installed on their computers.

For this reason, it seemed the general consensus of the group that the Court would do better to pick one of the fonts similar to New Century Schoolbook that is pre-installed on Windows and Macintosh computers.

An aside: there was some discussion of why the Court chose this particular font. Someone mentioned that Judge Frank Easterbrook of the Seventh Circuit has made public his view that New Century Schoolbook is the most readable font. And, it turns out, the Seventh Circuit’s practice rules now recommend Century Schoolbook, among other fonts, and states that “Both the Supreme Court and the Solicitor General use Century,” which is apparently a close cousin to New Century Schoolbook. There was some dispute at the meeting whether the Solicitor General actually uses this font. However, it does appear that the U.S. Reporters use either Century or New Century Schoolbook, which may explain the choice.

Electronic Filing

The proposed rules also require counsel to file electronic copies of briefs with the court and opposing counsel. This has been an informal practice for merits briefs for some time and was generally welcomed by the participants at the Georgetown meeting. It was noted that the rules do not specify the means of delivery to the Court (it was presumed that email would be preferred, although some noted that very large appendices might require delivery on CD or DVD). The rules also do not specify the format and there was some small concern that briefs might be distributed in outdated word processing formats as opposed to the more common practice of distributing Adobe Acrobat pdf files.

Many expressed the hope that the new electronic filing requirements would lead the Court to improve online access to briefs (including appendices), either by posting the briefs on the Court’s own web site (or through its electronic docket, as many courts of appeals do under the PACER system) or through cooperation with an outside organization (currently the ABA attempts to collect and post electronic briefs in granted cases).