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Texas Appellate Law Blog Civil Appellate Practice Tips, Resources, and News

Word-Count Rules Going Into Effect December 1

Posted in Appellate Practice, Briefs, Procedure, Technology, Texas Supreme Court

A trial lawyer poses the following question:

Do you know for sure whether the new appellate rules are going into effect December 1? Any thoughts on whether an appeal filed on November 29 (but not actually due until December 3) should maintain the old format or use the new rule?

Per this Texas Supreme Court order, the new word-count rules (previously discussed here) will indeed become effective December 1, 2012. The Supreme Court made a few minor revisions from the version released for public comment back in August, but—to the chagrin of some appellate specialists—the counts themselves are unchanged.  (The text of amended Texas Rules of Appellate Procedure 9.4(e) and (i), which contain the most significant changes, appears after the jump.)

I see no reason not to comply with the new rules early, as long as you also satisfy the old ones (i.e., meet both the new word-count and the old page-limit requirements). The appellate court may appreciate the effort, particularly if yours is the first brief filed in the case and the remaining briefs will be filed under the new rules, too.

If you would rather put off using word counts, I would take the effective date literally. For a brief filed on November 29, the old rules would still apply. File the same brief on December 3, and you will need to use a minimum 14-point font (12 for footnotes) and certify compliance with the new word limits. The old rules are not grandfathered, so December 1 is a hard effective date. Filing a notice of appeal a few days early won’t get you out of the new requirements.

Coming tomorrow: What should a certificate of compliance under amended TRAP 9.4(i)(3) look like?

9.4  Form

Except for the record, a document filed with an appellate court must—unless the court accepts another form in the interest of justice—be in the following form:

*                  *                  *

(e) Typeface. A document produced on a computer must be printed in a conventional typeface no smaller than 14-point except for footnotes, which must be no smaller than 12-point. A typewritten document must be printed in standard 10-character-per-inch (cpi) monospaced typeface.

*                  *                  *

(i) Length.

(1) Contents Included and Excluded. In calculating the length of a document, every word and every part of the document, including headings, footnotes, and quotations, must be counted except the following: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix.

(2) Maximum Length. The documents listed below must not exceed the following limits:

(A) A brief and response in a direct appeal to the Court of Criminal Appeals in a case in which the death penalty has been assessed: 37,500 words if computer-generated, and 125 pages if not.

(B) A brief and response in an appellate court (other than a brief under subparagraph (A)) and a petition and response in an original proceeding in the court of appeals: 15,000 words if computer-generated, and 50 pages if not. In a civil case in the court of appeals, the aggregate of all briefs filed by a party must not exceed 27,000 words if computer-generated, and 90 pages if not.

(C) A reply brief in an appellate court and a reply to a response to a petition in an original proceeding in the court of appeals: 7,500 words if computer-generated, and 25 pages if not.

(D) A petition and response in an original proceeding in the Supreme Court, a petition for review and response in the Supreme Court, a petition for discretionary review and response in the Court of Criminal Appeals, and a motion for rehearing and response in an appellate court: 4,500 words if computer-generated, and 15 pages if not.

(E) A reply to a response to a petition for review in the Supreme Court, a reply to a response to a petition in an original proceeding in the Supreme Court, and a reply to a response to a petition for discretionary review in the Court of Criminal Appeals: 2,400 words if computer-generated, and 8 pages if not.

(3) Certificate of Compliance. A computer-generated document must include a certificate by counsel or an unrepresented party stating the number of words in the document. The person certifying may rely on the word count of the computer program used to prepare the document.

(4) Extensions. A court may, on motion, permit a document that exceeds the prescribed limit.

(ii) Nonconforming Documents. Unless every copy of a document conforms to these rules, the court may strike the document and return all nonconforming copies to the filing party. The court must identify the error to be corrected and state a deadline for the party to resubmit the document in a conforming format.

Comment to 2012 Change: Rule 9 is revised to consolidate all length limits and establish word limits for documents produced on a computer. All documents produced on a computer must comply with the word limits. Page limits are retained for documents that are typewritten or otherwise not produced on a computer.

  • Steve Hayes

     
    For those who have not dealt with a word-limit approach to the length of
    briefs, and who usually exhaust the existing page limits, or who come
    within 90% of the current page limits, a word of caution: do not wait
    until the last minute to work through your first word-limited brief. You
    could very easily find the word limits leave you with about 10% less
    “space” than you customarily use.

    A good exercise for folks who normally exhaust their page limits, in
    writing their first word-limited brief, would be to develop a rough rule
    of thumb, based on past briefs they have written–take an old brief
    which met the page limits, and do a word count on it (that tells you
    whether your normal writing style puts you outside the new word limits).
    Then convert that old brief to the new font size and the normally
    available font the Supreme Court is rumored to prefer (Century
    Schoolbook), and get an average word per page count on the converted
    brief. This will give you an at-a-glance tool to gauge how much of your
    word limit you have used in drafting future briefs, just by looking at
    how many pages you have drafted. And you can always get an exact count
    on where you stand by implementing the word count tools in your word
    processing program.

    • http://www.appealsplus.com/ D. Todd Smith

      This is good advice, Steve. The new rule is going to take some getting used to, for sure.

  • Amanda T

    Under the new rule, is there any purpose in using small roman numerals for the introductory pages (table of contents, index of authorities, etc)? Wouldn’t it be cleaner and more modern to just start with a simple “1″? Or, are there other valid reasons for retaining the old numbering system?

    • http://www.appealsplus.com/ D. Todd Smith

      Good question. For those who don’t know, the main reason for using small Roman numerals for the introductory sections is that those did not count against the page limits. The common practice was to start Arabic pagination on the first page counting against limits. I will probably continue to use small Roman numerals for the table of contents and index of authorities, but start Arabic numbering after that.

  • Matt Brown

    Does rule 9.4(i)(1) include citations in footnotes, or only textual footnotes?

    • http://www.appealsplus.com/ D. Todd Smith

      There is no distinction under the rule.