Utah Court Rules – Published for Comment
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Posted: October 6, 2005
URAP 24. Briefs. Amend. The proposed amendment creates word and line limitations, in addition to a page limitation. Under the proposal, the principal brief would be either 30 pages, 14,000 words, or 1,300 lines of monospaced typeface. Another proposed amendment clarifies the process for seeking permission to file an over-length brief.
Under proposed rule 24(f)(2)(C), an attorney submitting a brief under paragraph (f)(2) must file a certificate that “state[s] either the number of words or the number of lines of monospaced type in the brief.” I would prefer to simply certify that the brief complies with the requirements. I will often think I have my brief ready, but then notice something that needs a minor change. I would prefer not to have to repeatedly run the “word count” when I make minor modifications in final drafts, especially where I have previously run the “word count” and know that I am well within the requirements of the rule.
I appreciate the appellate court’s effort to reduce the size of the briefs (ie; reducing appellant briefs from 50 pages down to 30 pages); HOWEVER, “counting words” is getting VERY PICKY and ridiculous! Let’s grow up and not require “a note from mother” that the brief doesn’t contain too many words!
Maybe I’m missing something, but these proposed changes are getting out of hand. Has there been some sort of a problem with briefs containing too many words??? WHAT IS THE PURPOSE of these proposed changes??? Is someone (the court clerk or opposing counsel) actually going to count the words in a brief to see if it complies with the proposed rule change???
I can understand the Court’s efforts to bring the rules into parity with the federal rules on the same subject (FRAP 32(7))—although I’m not altogether convinced that our customary emulation of the federal rules is either beneficial or advisable. For example: Utah’s “marshalling” requirement for factual challenges (“A party challenging a fact finding must first marshal all record evidence that supports the challenged finding”) is, so far as I have been able to ascertain, entirely unique to Utah among the 54 local jurisdictions, and does not appear in the federal circuits either. Such marshalling of “every scrap of evidence” in favor of a challenged finding (before being able to refute it), takes a great deal of space. Even under the 50-page rule, it is difficult to accomplish the marshalling requirement without using up one’s pages. I suggest, therefore, that, where a finding(s) is challenged, a further 10 pages (approximately 4500 additional words)be added to the limitation. On reply briefs, this would come to 5 pages, of course, or approximately 2300 additional words.
Having little innate cunning, I did not at first realize the susceptibility for abuse from which my prior suggestion might suffer. But I just had it pointed out to me that the unscrupulous might challenge a finding in order to obtain the extra space, and would then simply “fail” to properly marshall, using the added word allowance for further legal argument. It is a pity we must build rules to frustrate the subservise rather than to guide the compliant, but I suggest that the additional space I suggested in my prior comment be set aside in a separate section specifically for the purpose of satisfying the marshalling mandate (together with however much more the appellant might wish to use, drawn from the remainder of their space allowance).
I object to the proposed rule change for a variety of reasons but primarily because it is unnecessary. This proposed rule seems to be aimed at a few unscrupulous attorneys who try to manipulate their word processors to incorporate a few extra lines into a brief. The proposed rule will not stop those folks but will now give them some additional methods to use to include those extra lines. For example, word counts vary depending on the word processor used. Some word processors may off by as much as 5% (that’s 700 extra words in the proposed rule’s 14,000 word limit). See http://www.triacom.com/archive/wordcount.en.html. Microsoft even acknowledges that word counts in Word may deviate from other word processors, see http://support.microsoft.com/default.aspx?scid=kb;en-us;136861 ,or may be incorrect if certain features are used, see http://support.microsoft.com/default.aspx?scid=kb;en-us;249198 or may even be downright incorrect, see http://support.microsoft.com/default.aspx?scid=kb;en-us;159791 . So instead of closing loopholes for the unscrupulous, the proposed rule simply creates more loopholes. The proposed rule confuses the standard which is now clear and is followed by the majority of attorneys.
In addition, as Mr. Ellsworth correctly notes, the proposed rule will degrade the level of advocacy in some cases. It will be very difficult to adequately explain the facts, much less the law on complex issues, within the proposed rule’s limits in cases in which the record runs to several thousand pages. In addition to Utah, I am a member of a bar in state with lower brief page limits than the current Utah standards. I believe that the level of advocacy suffers when brief page limits are lowered.
The proposed rule is unnecessary and will have a detrimental effect on appellate advocacy.