What You Don't Know Can Hurt You (and Your Client's Appeal): Understanding Recent Amendments to the Federal Rules of Appellate Procedure.

• Author: Eagleton, Joseph T.
• Position: APPELLATE PRACTICE

Change is inevitable. That is as true in law as in all other facets of life. For appellate practitioners, one of the primary agents of change involves amendments to the rules of appellate procedure. And, just like changes in other parts of life, changes to the appellate rules can strike fear in many lawyers' hearts. Fortunately, this article is here to help.

Let's start with the basics. What's changed? Effective December 1, 2016, the Federal Rules of Appellate Procedure and the rules for the 11th Circuit Court of Appeals look a little different. Some of the amendments were fairly mundane, such as changing the timeline for filing the dreaded certificate of interested persons and corporate disclosure statement (CIP). (1) Others were more significant, such as eliminating the extra three days of mailing time when service is by electronic means. (2) Cutting short a lawyer's deadline is a big deal, indeed. Still, other amendments fall somewhere in between, such as a variety of new or reduced word limits for briefs, (3) writs, (4) and motions. (5)

Regardless of their everyday significance, though, these amendments are all important because each one has the potential, on some level, to impact your client's appeal. As regular federal practitioners know, the federal courts (and the 11th Circuit in particular) are sticklers about ensuring compliance with the rules. For example, even a failure to timely file the CIP can result in the 11th Circuit dismissing your case. (6) In federal court, rules are not meant to be broken.

With that in mind, this article highlights several of the most recent changes to the federal appellate rules to help you navigate and avoid procedural landmines in your federal appeal. As the saying goes, change is hard at the beginning, messy in the middle, and gorgeous at the end. With any luck, this article will allow you to skip the beginning and middle and get right to the end. Change may be inevitable, but it doesn't have to be so scary.

Keep it Short and Sweet

For years, judges and their law clerks have been telling lawyers that appellate briefs are too long. Apparently, they weren't kidding. The December 2016 amendments brought a whole slew of reduced word limits to the federal appellate rules. Indeed, if there is one theme that is pervasive throughout the amendments, it is an emphasis on shorter filings. From briefs on down to motions, the federal rules are now very specific about how many words you can use to make your point. Here's a hint: It's fewer than you probably want, but still more than most judges would probably prefer.

Briefs, as the most critical type of document most lawyers will file, are a natural place to begin. Prior to the 2016 amendments, Fed. R. App. P. 32 contained a 14,000-word limit on opening briefs and a 7,000-word limit on reply briefs. (7) Those word limits were instituted in 1998 after considerable debate to bring the old page limits, which were established when most briefs were produced on typewriters, up to speed with word processing technology. (8) At the time, the commentary to Rule 32 noted that the "widespread use of personal computers"--and all the spacing and formatting tricks they allow--had made the prior 50-page limit "virtually meaningless." (9) Thus, the federal rules switched from page limits to word limits, with the stated goal of giving "every party the same opportunity to present an argument without regard to the typeface used." (10)

Now, having the benefit of almost two decades' worth of experience with word limits, the federal courts have decided that the time has come for an update. The 2016 amendment to Rule 32 reduces the word limits by 7 percent: from 14,000 words to 13,000 words for principal briefs, and from 7,000 words to 6,500 words for reply briefs. (11) This change was initiated, in large part, as a "respon[se] to concern about the...