Remember that old quote, "If I had more time, I would have written a shorter letter"? It suggests that a shorter letter is more difficult, takes more time and is better. But shorter may not always be better. Less may not always be more. Sometimes more is, well, more.
Counsel Press recently blogged about a proposed rule before the Committee on Rules of Practice and Procedure to shorten federal appeals briefs by 1000 words and a study by two law professors, Professor Gregory C. Sisk, University of St. Thomas School of Law (Minnesota), and Professor Michael Heise, Cornell Law School, that suggests longer briefs may be more winning briefs.
Yes, you read that right.
Longer briefs might sometimes be better - at least for appellants. According to the study's authors, longer briefs corresponded with a better chance for appellants in civil cases to obtain reversal:
"Brief length proved powerfully significant in our study and with substantial effect—for appellants. However, the direction of correlation was the opposite of the conventional judicial wisdom. Longer briefs by appellants were associated with a greater probability in achieving reversal, while exceptionally short briefs were much more likely to be filed in losing appeals. For this set of civil appeals, persuasive completeness may be more important than condensed succinctness."
And to think of the many hours I have spent cutting extra pages out of briefs!
Of course, Professors Sisk and Heise spoke of "persuasive completeness" as the optimum goal, not length for the sake of length. Wordiness is never good. And making a brief less wordy, more organized, precise, clean and on point, in fact, is more difficult, takes longer and, ultimately, yes, is better.
But "persuasive completeness" is sometimes difficult when margins are 1 1/2 inches on each side, font size is Courier or 14 point, and words, lines and pages are limited. Sometimes the case is complex and the facts and legal arguments require more explanation. In those cases, uncompromising page, word and other limits might actually impede the ability fully and fairly to present an argument on appeal in the most persuasive way possible.
Appellate courts are fastidious about word counts, page counts, line counts, text and footnote font sizes, margins, and a whole slew of formatting requirements. Briefs that do not comply are rejected and sent back for a do-over. I know what you are thinking: motion for additional words or pages. But those motions are not often met with enthusiasm.
While the Sisk/Heise study focused on a sampling of civil cases in the Ninth Circuit, its conclusions make sense generally. Particularly as an appellant, when you face the prospect of overcoming striking affirmance rates to convince the appellate court that the lower court made a mistake, a few more pages in a brief may help crystallize an important issue and may make all the difference to the questions asked at oral argument.
While the time it takes to read and digest briefs and the use of judicial resources is important, justice is paramount. Strict adherence to length and word count limits may actually have the exact opposite effect than intended. The rules should have enough play in them to allow each party to present a brief that comports with the type of "persuasive completeness" Professors Sisk and Heise envisioned.
"Sure, go ahead and cut my brief by 1000 words," said no appellate lawyer, ever.
"Double spacing" under the Massachusets Rules of Appellate Procedure means "not more than three lines of text per vertical inch and not more than twenty-seven double-spaced lines on a page." Mass. R. App. P. 20(a)(3).