Question of the Week

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Earlier this month, the U.S. Supreme Court ruffled some feathers with some proposed changes to its rules.

One of the biggest changes would be cutting the allowed length of reply briefs from 6,000 words to 4,500 words. Merit briefs also would face a lower word-count limit, going to 13,000 from the previous max length of 15,000.

“The reduction in the length of reply briefs is more drastic, proportionally, than the reduction in the length of opening briefs,” appellate litigator Roy Englert Jr. told the National Law Journal. Englert, a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber, has argued 21 cases before the Supreme Court. “I’m surprised that the court cut so deeply, but I assume that something in the justices’ experience drove the change.”

Federal courts already had shifted word limits downward, so the changes at the high court aren’t unprecedented. Chief Justice John G. Roberts Jr. and the late Justice Antonin Scalia have both gone on record urging lawyers not to feel compelled to write to the maximum length. In Making Your Case: The Art of Persuading Judges, Scalia and co-writer Bryan Garner urge lawyers to make their arguments succinctly.

In a 2008 interview with the ABA Journal, Scalia said, “The briefs are extensive here at the court—60 pages from the petitioner and the respondent. … It’s too much for some cases. And it’s up to the lawyer to know when 40 pages is enough. And, as we say in the book, the best lawyer will come in with 40 pages. And the judge will read every one of those 40 pages because he knows this lawyer. And this lawyer always stops when he knows he’s said everything that is worth saying.”

At the same time, when you’ve spent months or even years building a complex case, writing a shorter brief can mean having to leave out compelling arguments or details that you think could be persuasive.

So this week we’d like to ask you: Do you always write briefs to the maximum length? Do you take advantage of every single word you’re allowed, or do you think brevity is the soul of wit? And what do you think of the Supreme Court’s proposed word limits?

Answer in the comments.

Read the answers to last week’s question: What are you thankful for?

Featured answer:

Posted by Jackie: “I am grateful for all of the lawyers who want to do pro bono work, for all the clients who entrust us with their legal issues, and most of all, for my firm, which supports the dedication of all of the copious resources of our firm to public service.”

Do you have an idea for a future question of the week? If so, contact us.

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