New La. 2nd Circuit local rule for appellee’s brief
Citations in footnotes: The never-ending debate.

For La. appellate briefs, does the cover count against the page limit?

Under the recently revised rules governing briefs in Louisiana courts of appeal, does the cover page count against the page limit? Apparently in the First Circuit, the answer is yes. At least, that is the interpretation of First Circuit Clerk’s office, as expressed in its checklists for the appellant’s and appellee’s briefs. (Hat tip to Mark Plaisance.)

Some background: As many of you know, the Uniform Rules of the Louisiana Courts of Appeal were recently amended, and the amendments included substantial revisions to the briefing rules.

One set of changes was designed to prevent lawyers from circumventing the old 28-page limit (for legal-size paper). Under the old rules, several non-argumentative items (such as the jurisdictional statement) were excluded from the 28-page limit. Often, some lawyers would circumvent the page limit by loading up those non-argumentative items with argument. So some lawyers, unable to control their prolixity, would submit briefs including, say, a five-page jurisdictional statement loaded up with argument on the merits of the appeal.

The revised rules fix that problem. Under revised Rule 2-12.2(D)(1), the page limit is expanded from 28 legal-size pages to 31, but everything is included in the expanded page limit except the table of contents and table of authorities. With everything counting against the page limit, lawyers no longer have anything to gain by shifting argument to what are supposed to be non-argumentative parts of the brief.

Under the old rules, the clerks of the five courts of appeal invariably omitted the cover page from the old 28-page limit. Many lawyers (well, at least I) assumed that the cover page would continue to be excluded from the new 31-page limit. But revised Rule 2-12.2(D)(1) does not explicitly exclude the cover page, and it seems that the First Circuit clerk’s office is interpreting the new rule literally, thus including the cover page in the page limit.

How are the other circuits interpreting the new rule? The Second Circuit’s briefing checklist does not say whether the cover page is included in or excluded from the page limit, but it does remind lawyers that the page limit “[e]xcludes only table of contents and table of authorities.” I couldn’t find anything on the Third, Fourth, or Fifth Circuit’s web sites addressing this question.

My suggestion: When filing a brief in the First Circuit, comply with the First Circuit’s checklist. If you don’t, you risk having your brief returned unfiled. In the other courts of appeal, assume that the clerk’s office will, like the First Circuit, interpret the new rule literally and will count the cover page against the page limit. If you need more pages, file a timely motion to enlarge the page limit. See Unif. R. 2-12.2(D)(3).

Comments

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Paul B. Simon

Have there been any further developments on this? I have been blissfully ignoring this possibility and wonder if I just have had dumb luck or if a more sensible rule (in my opinion) has prevailed in other circuits.

Ray Ward

No developments that I am aware of, except that different circuits have different answers to this question. It has not been an issue for me because, by habit, I have been limiting myself to the old 28-page limit. And so far, I have not had to push the outside of the envelope. My suggestion is that, if you find yourself in dire need of that page, telephone the clerk’s office and ask to speak with the chief deputy clerk. The clerks’ offices are most helpful in answering these sorts of questions.

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