Better Watch Your Language in Court Filings
If you’re having trouble meeting the word limit in an appellate brief, it’s probably not a good idea to delete spaces between words or drop every “a” and “the.”
Nor should you try to pare words by going crazy with abbreviations.
Those tactics will only irritate the court – and might well get your appeal tossed.
That’s what happened in Delaware, where the U.S. Federal Circuit Court of Appeals dismissed an appeal because the appellant’s brief – despite extraordinarily creative editing - exceeded the 14,000 word ceiling.
What’s the Word?
Appellant first ran into trouble by filing an opening brief that came in above the word count. In an attempt to fix the problem, a so-called “corrected brief” was submitted that dropped pesky articles like “the” and squished words together by eliminating the spaces between them.
Which did not please the court. From the dismissal order:
“For example, the following is not one word, although that is how it appears on page 3 of Appellants’ first corrected opening brief: Thornerv.SonyComputerEntm’tAmLLC669F.3d1362,1365(Fed.Cir. 2012). Instead, when written properly, it is 14 words: Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). Similar matters appeared throughout the brief.”
Also ineffective was appellant’s creative use of abbreviations and the insertion of a cross-reference table that the court deemed “so poorly explained as to be nearly incomprehensible.”
Oh, well, nice try.
Acronym Angst in DC
Meanwhile, litigants in DC find themselves in a similar syntax swamp – theirs involving acronyms.
In 2012, the U.S. DC Circuit Court of Appeals warned against overuse of acronyms – especially ones that are obscure or made-up:
“[B]oth parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with references to ‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC’—shorthand for ‘spent nuclear fuel,’ ‘highlevel radioactive waste,’ the ‘Nuclear Waste Fund,’ the ‘Nuclear Waste Policy Act,’ and the ‘Blue Ribbon Commission.’”
Now the clerk’s office is following up on that threat by calling out lawyers who continue to pepper their briefs with acronyms and abbreviations. The lawyers were given seven days to “re-examine” their briefs, excise offensive acronyms and make sure they were otherwise in compliance with court rules.
It is not just the choice of words that matter on appeal. The number of them is important too.
Do you practice appellate law? Make sure you know the North Carolina Rules of Appellate Procedure and follow them to the letter. Otherwise your case might be DOA.
- ABA Journal http://www.abajournal.com/news/article/squished_together_phrases_dont_count_as_one_word_federal_circuit_says_appea/?utm_source=internal&utm_medium=navigation&utm_campaign=most_read
- How Appealing http://howappealing.abovethelaw.com/Pi-NetVsJPMorgan-cafc-042115.pdf
- North Carolina Rules of Appellate Procedure http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf
- American Bar Association Journal http://www.abajournal.com/news/article/check_you_briefs_for_acronym_overuse_dc_circuit_clerk_tells_lawyers_in_camp/
- American Bar Association Journal http://www.abajournal.com/news/article/federal_appeals_court_takes_lawyers_to_task_for_acronyms
Jay Reeves a/k/a The Risk Man is an attorney who has practiced North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact him at email@example.com.