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U.S. 5th Circuit Attorney Toolbox

How not to evade the word-count limit

Sometimes brief-writers find themselves tempted to squeeze under the page limit or word-count limit by referring to and incorporating by reference an argument in another brief. If you’re ever tempted to do that, here’s my suggestion: Don’t. Otherwise, you may find yourself on the receiving end of an order like this one in Promptu Systems Corp. v. Comcast Cable Communications, LLC, No. 2022-1093 (Fed. Cir. Feb. 16, 2024). The lawyer there tried to get under the word-count limit by incorporating by reference a 2,000-word argument from another brief. The court didn’t appreciate that; nor did it appreciate the lawyer’s argument that he was just trying to “streamline the briefing”: “Requiring the Court to crossreference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count.”

If you think you’ll have trouble meeting the page limit or word-count limit, file a motion to enlarge the limit. That motion will likely get a better reception than any attempt to evade the limit. And if you’re filing in a Louisiana court of appeal, be mindful of Uniform Rule 2-12.2(C)(3).

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