Omphaloskepsis of Federal Appellate Rules Committee: Rule 32(a)(7) of Federal Rules of Appellate Procedure, 0513 ALBJ, 74 The Alabama Lawyer 168 (2013)

• Author: David A. Bagwell

Omphaloskepsis^[1] of the Federal Appellate Rules Committee: Rule 32(a)(7) of the Federal Rules of Appellate Procedure

Vol. 74 No. 3 Pg. 168

Alabama Bar Lawyer

May 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 David A. Bagwell

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Say you have an appeal in the United States Court of Appeals, and you are beginning your brief. Say you are a regular lawyer, who has a case occasionally in the Federal Court of Appeals, but you don’t just, like, live there or anything. So you never can really remember, from case to case, exactly what the rules are, but since you are a good lawyer and at least try to do right, you sit down and read the most nearly pertinent rules every time you have an appeal. Therefore, you just can’t quite remember exactly how many pages your brief can be, at the outer limit. Yeah, sure, you remember Judge Godbold’s famous “twenty pages and twenty minutes”^[2] dictum, but, heck, 20 pages is nothing to a lawyer, so, “like a fiend with his dope, or a drunkard with his wine” as Johnny Cash would have sung, you look up the page limitation despite Judge Godbold’s sound advice.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The answer is easy, right? Appellate Rule 32(a)(7)(A) says that “[a] principal brief may not exceed 30 pages . . . unless it complies with Rule[s] 32(a)(7)(B) and (C).”

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0But, since you are not a total idiot, you see that your opponent’s [appellant’s] brief is numbered at 57 pages in Arabic numerals, even after eating up some number of pages numbered with lower-case Roman numerals^[3], and so you decide that there must be some ancient Celtic talismanic power in rules 32(a)(7)(B) and (C), some kind of “Mojo Hand” or something, which can magically transmogrify the limit of 30 pages into double that number. How can that possibly be the case? Why would the rules do that? But, if they do “do that, ” then you want it.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0So, you wade into Rule 32(a)(7). In passing you note that the rule could not possibly have been actually written by any lawyer or judge, and probably never even actually read by any judge, but was instead written by a typographer. You note in passing that Rule 32(a)(5)(A) says that “[a] proportionally [-] spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally [-] spaced face must be 14-point or larger.”

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0So you ask your secretary–if you are lucky enough to be in a firm which still allows you to have secretaries–“Is WordPerfect® ‘proportionally-spaced’ or not, and what the hell does that mean, anyway?”, to which he replies, “I guess so; how should I know?”. You have no idea whether your word-processing software is “proportionately [-] spaced” or not, but you daringly just make a working assumption that it is, since the rule does not define the term, and your computer does not tell you, anywhere that you know to look.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Which brings you to the problem in Rule 32(a)(5)(A) that you “must include serifs.” Is this “serifs” thing the singular form of the Hebraic “Seraphim, ” one of the nine orders of angels^[4], and thus an errant violation of the Establishment...