Trial & Error: Tips for Trial Lawyers

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On Monday, October 1, 2012 by P. Michael Jung posted in Trial & Error: Tips for Trial Lawyers
For several years now, Texas appellate lawyers have had to swing both ways. No, get your mind out of the gutter, that’s not what we’re talking about. We're referring to words and pages.

Since 1998, federal appellate courts have measured the length of briefs in words: 14,000 for a principal brief, and 7,000 for a reply brief. (Petitions for rehearing are an exception, at 15 pages.) Gone have been the days when you could play with margins, typefaces, footnotes, and the like to cram the square peg of your overlength brief into the round hole of a page limit. With the switch to words has come a font-size requirement: 14-point type for ordinary text and 12-point type for footnotes.

Texas, on the other hand, has long stuck to page limits. Originally unlimited, the length of principal briefs in Texas appellate courts is now capped at 50 pages, reply briefs at 25, petitions for review and motions for rehearing at 15, and so on. Many are the lawyers who have had to learn new word-processing features on the date their brief was due in order to make it fit.

Effective December 1, 2012, however, Texas is joining the word-limit club. Using a ratio of 300 words per page, the length limits for appellate documents will be converted to word limits: 15,000 for a principal brief, 7,500 for a reply brief, 4,500 for a petition for review or motion for rehearing, and 2,400 for a reply in support of a petition for review. The old 90-page-per-side aggregate limit will also be converted, to 27,000 words. These limits are slightly more generous than their federal counterparts.

As in the federal rules, the preliminary and concluding parts of the brief – tables, jurisdictional statements, issues, signatures, certificates, appendices, and the like – are excluded from the word count. A new “certificate of compliance” is required. The federal font-size requirements have been adopted. And, finally, as in federal court, remember: footnotes count!

The switch from pages to words will provide lawyers with an opportunity to improve the format and content of their briefs. White space takes up zero words, and so there is no reason not to make briefs visually appealing and easy-to-read. What belongs in the text can be put in the text, and what belongs in footnotes (a controversial topic for another day) can be put in footnotes. And editing out wordiness is rewarded whether it saves a line or not.

Finally, please remember: like page limits, the new word limits are maximums, not minimums. A 10,000-word brief is too long if it can be reduced to 9,999 words without loss of clarity or content!
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