Compliance with rules of court.

• Jurisdiction: United States

Section 22. Compliance with rules of court.—Compliance with rules of court is stated as the first requirement because, even if you should succeed in writing that dream brief, the clerk would not permit it to be filed if it exceeded the permitted length, or if it violated in other obvious respects the rules of the court to which it is tendered. So—first essential—familiarize yourself with the current rules of the court in question, and comply with them. The word "current" is advisedly italicized; failure to heed the obsolescence factor in rules of court can be extremely dangerous.¹

As has been indicated, this book is not a treatise on federal appellate procedure. It does not discuss the question of what rulings are appealable—and so does not consider the scope of the recent Act of Congress which, by permitting interlocutory appeals in certain cases, alters the "final judgment" rule that had been traditional in the federal judicial system since the beginning.² Similarly, there will be no discussion of the mechanics of preparing the record on appeal, a process that is subject to constant change as more and more circuits adopt the appendix system and provide for the transmission of original papers to the appellate court.³

Moreover, there will be no attempt to discuss in detail the provisions concerning briefs as these appear in the rules of Federal appellate courts. For one thing, there is available the excellent text of Messrs. Stern and Gressman on Supreme Court Practice,⁴ while the rules of all Federal appellate courts are conveniently collected in the USCA and in the Lawyers Coop, edition of the Supreme Court Digest.⁵ For another, all of these rules are subject to frequent and drastic changes, so that what was once proper can become literally unacceptable overnight.⁶ Consequently, the only safe procedure, whether you are new at the game or whether, although experienced generally, you are writing a brief for a court in which you have not previously practiced, is (a) to read the rules; (b) to check with the clerk or a lawyer who is frequently before the particular court; and (c) to examine and follow the form of some briefs that have already passed muster under the rules in force.

Since the rules reflect the preference of your audience, an audience you are seeking to persuade, you will be well advised to adjust your own pet notions to those preferences. The judges adopted those rules in the view, rightly or wrongly, that the provisions in respect of briefs will conserve their time and energy.

Three points that are dealt with in the rules of most Federal appellate courts must be carefully checked:

First. Some courts require a particular and frequently somewhat arbitrary arrangement of briefs, with respect to color of cover,⁷ rigidly detailed arrangement of matter,⁸ summary of argument and of the principal authorities,⁹ and prescribed position for the statement of questions presented.¹⁰

Second. Most clerks, reflecting the views of their courts, are quite fussy about untimely filings.¹¹

Third. An increasing number of Federal appellate courts limit the length of the briefs that may be filed without prior express permission. This is now true of all federal circuits except the Fifth.

There is no limit on the length of briefs in the Supreme Court of the United States, except in one instance of narrow application.¹² But "The failure of a petitioner [for certiorari] to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying his petition."¹³ Under earlier versions of the rule there were dismissals for failure to file arguments that were "direct and concise."¹⁴ And on one now well-known occasion, briefs on the merits filed by eminent—and no doubt well-compensated—counsel were stricken because they contained "burdensome, irrelevant, and immaterial matter."¹⁵

One additional but extremely important caution must be noted here: Bear in mind the limitations on the reviewing powers of the appellate court that apply to your particular case. A finding of fact made below is scrutinized by different standards depending on whether it was made by a jury, or by a judge sitting in what traditionally would have been a suit in equity, or by an administrative agency.¹⁶ A fact found by the Court of Claims can be reviewed by the Supreme Court only under stringent limitations—if at all.¹⁷ The Court of Military Appeals has not been granted power to review facts; it can review only questions of law.¹⁸ The Supreme Court of the United States, when determining cases brought to it from State...