One Size Fits All?

During this same time period, federal prosecutors have mounted increasingly complex prosecutions of corporate malfeasance, securities scams, and health care fraud, producing voluminous indictments and multi-week or multi-month trials that may generate numerous appellate issues. In addition, a white-collar de-fendant's exposure under the Sentencing Guidelines frequently turns upon various different loss items and two or more Chapter 3 characteristics ' each of which may require separate consideration on appeal. These factors have produced a small but significant subset of federal criminal prosecutions with more complicated fact patterns and more appellate issues than average. Moreover, the alleged wrongdoing in these cases often arises out of regulatory frameworks with which both trial and appellate judges are unfamiliar ' thereby increasing the likelihood of trial court error, and requiring additional explication on appeal.

Brief Lengths

As a result of these parallel trends, there is a growing tension between the determination of appellate judges to hold the line on brief lengths, and the needs of prosecutors and defense counsel to explain adequately the underlying facts, regulatory contexts, and legal and sentencing issues presented by today's more complex criminal prosecutions. While the circuit courts do not publish statistics concerning their responses to what most judges revealingly call requests to file 'oversized' briefs, my personal experience and that of my professional colleagues strongly suggests that the courts are increasingly reluctant to authorize exceptions to the 14,000-word limit mandated by Fed. R. App. P. 32(a)(7). Recently, for example, the Fourth Circuit held my office to the standard word limit in a case involving a 9-week securities fraud trial with an 8400-page record in which the defense raised ten issues on appeal.

Some longer briefs continue to be authorized. In both the Frank Quattrone and Bernard Ebbers prosecutions, the Second Circuit authorized the parties to file principal briefs of 28,000 words (although the oral argument in the Ebbers case was held to a mere 10 minutes per side). But the Second Circuit's willingness to accept briefs of this length in high-profile appeals from the Southern District of New York appears to be atypical.

Given the circuit courts' increasing resistance to requests to file longer briefs, how can counsel in a complex case best meet the special challenges of appellate litigation in the age of limits?

Meeting the Challenge

Visual Exhibits and Aids

First, you must begin thinking about how to address these challenges even before the jury is in the box. Effective demonstrative exhibits and visual aids are not only vital for communicating with modern jurors, but they may also help you to explain complex facts and unfamiliar regulatory issues to busy appellate judges with great economy of language. On appeal, a well-designed visual aid may not be worth 1000 words, but twice that number.

Keep in mind, too, that Fed. R. App. P. 34(g) authorizes the use of both physical exhibits and documents at oral argument, and the rule does not expressly prohibit the use of other visual aids designed to illustrate your points on appeal. But you should check whether the court prefers an advance motion requesting leave to use such visual aids and tender any new ones to opposing counsel well before oral argument.

Court History

Second, before submitting a request for a longer brief, determine how your court has recently responded to such requests. Clerk's Office personnel are sometimes willing to give you a sense of your chances, and they may also advise you about how many additional words you can reasonably request. Government lawyers can consult office colleagues, the appellate chiefs in other U.S. Attorney's Offices in your circuit, or the attorneys assigned to your court of appeals in the Appellate Section at Main Justice to learn what their experiences with similar requests have been. Defense counsel should canvass any appellate specialists in the federal public defenders' offices in your circuit, or other attorneys who appear regularly before your circuit court. You can check the docket entries in recent complex appeals through PACER or on Westlaw to see whether requests for longer-than-standard briefs were filed in those cases, and if so, how they fared.

Opposing Counsel

Third, when you request permission to file a longer brief, your opposing counsel's position is extremely important. A joint request for additional length is far more likely to be granted than a motion filed by only one party. If opposing counsel will not support a joint request, then at least be able to document through correspondence that you sought opposing counsel's consent and offered to support a proportional increase for their brief. Remember, too, that some circuit courts have local rules requiring that requests for longer briefs be filed at least 10 calendar days before the brief's filing date. See, e.g., Fourth Circuit Loc. R. 32(b). Whether or not your opposing counsel consents to a joint request, you must thoroughly document the reasons supporting the additional length. This means not just delineating the length of your trial, but also spelling out the novelty and complexity of its facts and issues and comparing the issues with those presented in other cases where the court approved longer briefs.

Tough Choices

But what if none of this works, and the circuit court still insists that your brief run no longer than 14,000 words? If you're the appellant, you must now make tough choices about the number of issues you should present, bearing in mind the standards of review, the clarity of your record, the strength of your authorities, the reputation of the trial judge, and the thoroughness with which he or she addressed each issue originally.

Next, polish up your editing skills or enlist the aid of a concise and pithy colleague to blue-pencil the draft of your brief. One book I consult frequently is Claire Kehrwald Cook's Line by Line: How to Edit Your Own Writing, and online bookstores offer other, similar volumes. The best editing advice, of course, remains in Strunk & White's classic, The Elements of Style: 'Omit needless words.'

Be aware that you risk appellate ire if you compensate for the word limit (most judges would say 'circumvent') by including major chunks of your district court memoranda in the joint appendix. Fed. R. App. P. 30(a)(2) expressly states that district court briefs 'should not be included in the appendix unless they have independent relevance,' such as establishing that a given issue was properly presented below. See Matthews v. Friedman, 882 F.2d 83, 86 (3d Cir. 1989). You may be able to argue that portions of your district court briefs are pertinent to show what your arguments were, and how the district court failed to properly address them. Remember, too, that you can at least refer the court to the relevant pages of your district court briefs, for the rule states that 'Parts of the record may be relied upon by the court or the parties even though not included in the appendix.'

If you're still left with one or more issues for which you do not have adequate space, then provide a sufficient summary of the facts and argument so that the court cannot assert you have waived the issue by not presenting it. Fed. R. App. P. 28(a)(9)(A); Barron v. Gallagher, 897 F.2d 1387, 1393 (7th Cir. 1990). Draw the court's attention to the relevant pages of the Joint Appendix, and cite the pertinent portions of your district court briefs. Finally, note that you timely filed a request for additional words, and renew that request in your brief and when you appear before the court. It may be that after reading the briefs and hearing the oral argument, the court will take a different view of your earlier request. On one occasion, this approach won me an order authorizing a supplemental brief of 10,000 words.

Jefferson M. Gray, a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney in the District of Maryland. This article reflects only his individual analysis and conclusions, and does not purport to speak for the Department of Justice or any of its divisions.

Today, a Procrustean 'one-size-fits-all' approach increasingly characterizes federal appellate practice, particularly for attorneys who handle complex conspiracy or white-collar cases. While page limits for appellate briefs date back to at least the 1940s, within the past 20 years they have been applied with a new and sometimes surprising inflexibility. No matter how long the trial, how complicated its facts, or how numerous the appellate issues may be, the day has passed when counsel can assume that requests to file a brief in excess of the standard word limits will be granted.

The Rapid Expansion of Appellate Caseloads

This development reflects the explosion in appellate caseloads since the early 1980s. In the Fourth Circuit (the court with which I am most familiar), the number of appeals jumped from 2200 in 1980 to 5000 in 2005 'a 140% increase. Other circuits have experienced even greater increases. But most circuit courts have received only a handful of new judges to cope with their swelling workloads, and political disputes have sometimes resulted in judgeships remaining unfilled for years.

During this same time period, federal prosecutors have mounted increasingly complex prosecutions of corporate malfeasance, securities scams, and health care fraud, producing voluminous indictments and multi-week or multi-month trials that may generate numerous appellate issues. In addition, a white-collar de-fendant's exposure under the Sentencing Guidelines frequently turns upon various different loss items and two or more Chapter 3 characteristics ' each of which may require separate consideration on appeal. These factors have produced a small but significant subset of federal criminal prosecutions with more complicated fact patterns and more appellate issues than average. Moreover, the alleged wrongdoing in these cases often arises out of regulatory frameworks with which both trial and appellate judges are unfamiliar ' thereby increasing the likelihood of trial court error, and requiring additional explication on appeal.

Brief Lengths

As a result of these parallel trends, there is a growing tension between the determination of appellate judges to hold the line on brief lengths, and the needs of prosecutors and defense counsel to explain adequately the underlying facts, regulatory contexts, and legal and sentencing issues presented by today's more complex criminal prosecutions. While the circuit courts do not publish statistics concerning their responses to what most judges revealingly call requests to file 'oversized' briefs, my personal experience and that of my professional colleagues strongly suggests that the courts are increasingly reluctant to authorize exceptions to the 14,000-word limit mandated by Fed. R. App. P. 32(a)(7). Recently, for example, the Fourth Circuit held my office to the standard word limit in a case involving a 9-week securities fraud trial with an 8400-page record in which the defense raised ten issues on appeal.

Some longer briefs continue to be authorized. In both the Frank Quattrone and Bernard Ebbers prosecutions, the Second Circuit authorized the parties to file principal briefs of 28,000 words (although the oral argument in the Ebbers case was held to a mere 10 minutes per side). But the Second Circuit's willingness to accept briefs of this length in high-profile appeals from the Southern District of New York appears to be atypical.

Given the circuit courts' increasing resistance to requests to file longer briefs, how can counsel in a complex case best meet the special challenges of appellate litigation in the age of limits?

Meeting the Challenge

Visual Exhibits and Aids

First, you must begin thinking about how to address these challenges even before the jury is in the box. Effective demonstrative exhibits and visual aids are not only vital for communicating with modern jurors, but they may also help you to explain complex facts and unfamiliar regulatory issues to busy appellate judges with great economy of language. On appeal, a well-designed visual aid may not be worth 1000 words, but twice that number.

Keep in mind, too, that Fed. R. App. P. 34(g) authorizes the use of both physical exhibits and documents at oral argument, and the rule does not expressly prohibit the use of other visual aids designed to illustrate your points on appeal. But you should check whether the court prefers an advance motion requesting leave to use such visual aids and tender any new ones to opposing counsel well before oral argument.

Court History

Second, before submitting a request for a longer brief, determine how your court has recently responded to such requests. Clerk's Office personnel are sometimes willing to give you a sense of your chances, and they may also advise you about how many additional words you can reasonably request. Government lawyers can consult office colleagues, the appellate chiefs in other U.S. Attorney's Offices in your circuit, or the attorneys assigned to your court of appeals in the Appellate Section at Main Justice to learn what their experiences with similar requests have been. Defense counsel should canvass any appellate specialists in the federal public defenders' offices in your circuit, or other attorneys who appear regularly before your circuit court. You can check the docket entries in recent complex appeals through PACER or on Westlaw to see whether requests for longer-than-standard briefs were filed in those cases, and if so, how they fared.

Opposing Counsel

Third, when you request permission to file a longer brief, your opposing counsel's position is extremely important. A joint request for additional length is far more likely to be granted than a motion filed by only one party. If opposing counsel will not support a joint request, then at least be able to document through correspondence that you sought opposing counsel's consent and offered to support a proportional increase for their brief. Remember, too, that some circuit courts have local rules requiring that requests for longer briefs be filed at least 10 calendar days before the brief's filing date. See, e.g., Fourth Circuit Loc. R. 32(b). Whether or not your opposing counsel consents to a joint request, you must thoroughly document the reasons supporting the additional length. This means not just delineating the length of your trial, but also spelling out the novelty and complexity of its facts and issues and comparing the issues with those presented in other cases where the court approved longer briefs.

Tough Choices

But what if none of this works, and the circuit court still insists that your brief run no longer than 14,000 words? If you're the appellant, you must now make tough choices about the number of issues you should present, bearing in mind the standards of review, the clarity of your record, the strength of your authorities, the reputation of the trial judge, and the thoroughness with which he or she addressed each issue originally.

Next, polish up your editing skills or enlist the aid of a concise and pithy colleague to blue-pencil the draft of your brief. One book I consult frequently is Claire Kehrwald Cook's Line by Line: How to Edit Your Own Writing, and online bookstores offer other, similar volumes. The best editing advice, of course, remains in Strunk & White's classic, The Elements of Style: 'Omit needless words.'

Be aware that you risk appellate ire if you compensate for the word limit (most judges would say 'circumvent') by including major chunks of your district court memoranda in the joint appendix. Fed. R. App. P. 30(a)(2) expressly states that district court briefs 'should not be included in the appendix unless they have independent relevance,' such as establishing that a given issue was properly presented below. See Matthews v. Friedman , 882 F.2d 83, 86 (3d Cir. 1989). You may be able to argue that portions of your district court briefs are pertinent to show what your arguments were, and how the district court failed to properly address them. Remember, too, that you can at least refer the court to the relevant pages of your district court briefs, for the rule states that 'Parts of the record may be relied upon by the court or the parties even though not included in the appendix.'

If you're still left with one or more issues for which you do not have adequate space, then provide a sufficient summary of the facts and argument so that the court cannot assert you have waived the issue by not presenting it. Fed. R. App. P. 28(a)(9)(A); Barron v. Gallagher , 897 F.2d 1387, 1393 (7th Cir. 1990). Draw the court's attention to the relevant pages of the Joint Appendix, and cite the pertinent portions of your district court briefs. Finally, note that you timely filed a request for additional words, and renew that request in your brief and when you appear before the court. It may be that after reading the briefs and hearing the oral argument, the court will take a different view of your earlier request. On one occasion, this approach won me an order authorizing a supplemental brief of 10,000 words.

Jefferson M. Gray, a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney in the District of Maryland. This article reflects only his individual analysis and conclusions, and does not purport to speak for the Department of Justice or any of its divisions.