We all know the little tricks to stuffing the most content into the allotted number of pages of your appellate brief (currently 50 for the Court of Appeals and 35 for the Court of Special Appeals) – decreasing the line spacing, decreasing the margins, decreasing the kerning, decreasing the height of the text, etc. Well, you’re not fooling anybody: As noted by the Maryland Standing Committee on Rules of Practice and Procedure in its 187th Report, “Appellate judges, in Maryland and elsewhere, are regrettably familiar with those tactics and legitimately complain about them.” The Committee has finally had enough, and is urging the Court of Appeals to amend the Maryland Rules to combat the problem.
First, the Report calls for replacing page limits for briefs with word limits (unless you’re still using a typewriter, in which case page limits still apply as set forth in a new Md. Rule 8-112). Under the proposed Rule 8-503, and based on the Committee’s estimation of 260 typed words per page, a principal brief wouldn’t be able to exceed 13,000 words in the Court of Appeals or 9,100 words in the Court of Special Appeals (except when the appellee is also a cross-appellant, in which case its gets 13,000 words). Other filings will come with their own word limits: The Court of Appeals would impose a 6,500 word limit on motions to dismiss, reply briefs, and amicus curiae briefs (except for writs, in which case 3,900 is the max), while those limits in the Court of Special Appeals would be 2,600 words for the reply brief and 3,900 words for the others. (One other quirk: In the Court of Special Appeals, the response of a cross-appellee could be 13,000 words if it also contains a reply to the appellee’s response.)
There’s a bit of an honor system to deter cheaters – attorneys will have to include a certification of the word count that tracks provided language. Sound familiar? You may recognize this scheme as in line with the word-limit option of the Federal Rules of Appellate Procedure, which the Rules Committee used as a foundation for the recommendations.
The word count isn’t the only thing a filing attorney would have to certify: The brief also must comply with a revamped Rule 8-112, which requires use of the Times New Roman font, double line-spacing, and one-inch margins all around. The Committee stated those modifications were necessary to prevent litigants from “crowding … letters and words in a line, all in order to cram more words into each line and into the brief as a whole.” That reasoning may not seem too persuasive, however: If the Rules are changed to impose word limits, what incentive would there for a lawyer to try to cram more words into each line?
As for Times New Roman, the new Rule 8-112 would be a bit of a radical change, as no other jurisdiction in the country requires use of the font. (In fact, the Second Circuit expressly disapproves of it.) It is also somewhat incongruous that the Committee sought to limit cramming words onto each line yet chose to mandate Times New Roman — originally designed as a newspaper font, it was meant to cram words onto lines, thereby getting more content onto each printed page. Nonetheless, the Committee, noting that most Maryland appellate judges printed their opinions in Times New Roman, decided that it was “the most readable.” (Ironically, the Committee then elected to print the Report in Courier New.)
The Court of Appeals will have the final say on these suggestions, but, either way, parties on appeal should be aware that some new instructions for form and style of filings are likely coming down the pipe. As such, some space-saving typographical maneuvers will probably be rendered obsolete. However, whatever the rule adjustments are, they shouldn’t meaningfully transform the primary goal of any attorney putting together an appellate brief — sharp, focused, clear writing.
The law firm of Silverman Thompson Slutkin & White, LLC, is uniquely posed to handle appeals in the state of Maryland. Judge Joseph F. Murphy, Jr. (Ret.) served as a member of both the Court of Special Appeals and Court of Appeals for over 15 years; his daughter, Erin Murphy, is a well-recognized appellate practitioner, and Chris Mincher, the author of this article, clerked for Judge McDonald on the Court of Appeals. In addition, the Firm has handled appeals in other state courts and various Federal courts, including cert. petitions to the United States Supreme Court. To find out more about how the Firm can help with your appellate needs, please call (410) 385-2225 and ask to speak with Judge Murphy, Ms. Murphy, Bill Sinclair, the head of the Firm’s business litigation group, or Mr. Mincher.