Electronic briefs probably will be required
UPDATE: 2:58 p.m. The proposed new rules are now available on the Supreme Court website, at this link.
The Supreme Court announced on Monday that it is considering a change in its Rules to require lawyers to file electronic copies of briefs on the merits of granted cases. The electronic version, however, will not replace the requirement for merits briefs in booklet-form; it is in addition to the traditional form under present Rule 25. (UPDATE: The Court does not plan to post the newly required e-versions of merits briefs directly on its website; it will continue, however, to provide a link to merits briefs on an American Bar Association website, found here.)
The Court is also pondering some reduction in the time it will allow for filing some merits briefs. Under new provisions in Rule 25, the respondent’s brief on the merits would have to be filed in 30 days — five days sooner than before, and reply briefs would be due in 25 days — ten days sooner than before. The Court suggested these changes would recognize that “the time period between the granting of a petition for a writ of certiorari and the dae of oral argument has decreased in recent years.”
The Court invited public comment on these and other proposed Rules changes, with comments due by June 4, in writing. Any changes in the rules would be adopted on June 25, and would go into effect Aug. 1, under the proposal. The proposed changes will be posted on the Court’s website later Monday.
Among the other significant changes (amid a host of minor revisions), the new Rules would impose new requirements on attorneys filing amicus curiae briefs, at both the petition and merits stages. New Rule 37 would require a friend-of-court to notify counsel in the case of intent to file a brief at the petition stage, and to send an electronic version of every brief in a case granted and scheduled for oral argument. If an amicus is supporting a petitoner at the petition stage, before review is granted, its brief must be filed within 30 days after the underlying case is put on the docket, with no extensions allowed.
Among other changes, the Court is considering putting words limits on filed documents, instead of page limits. A comment by the Clerk accompanying the proposed revisions says that this change was made “to limit the length of documents while eliminating any incentive to increase the number of words on a page.” It adds that the change follows a similar change in the Federal Rules of Appellate Procedure. The new Rule 33.1 also clarifies which words are to be included in the allowed count — footnotes, for example, count as part of the allotted length in words.
The Court also proposes to double its fee for admission to its Bar — from $100 to $200. The Clerk’s comment notes that the last fee increase was in 1979.
Colorado’s switch from a page limit to a word limit was accompanied by an increase in mandatory font size from 12 point to 14 point.
Giving the increasing age of the Justices, a requirement that litigants use 18 or 24 point font, in paid SCOTUS briefs, would make a great deal of sense.
Comment by Andrew Oh-Willeke — May 14, 2007 @ 3:46 pm
It appears to me that the proposed 9000 word limit for cert petitions would in general be a bit of a decrease in permissible length over the current rule, while the proposed 15,000 word limit for merits briefs would often constitute a bit of an increase. Do others see it that way?
Comment by Peter G — May 14, 2007 @ 9:15 pm
Peter G, they appear to come out the same. The Court has applied a 300 word per page conversion factor, so the 30-page limit for petitions, multiplied by 300 words per page, comes out to a 9,000 word limit. The 50-page limit for merits briefs, multiplied by 300 words per page, comes out to 15,000 words.
An unscientific study (conducted on the last petition I was involved in, which was fairly footnote-heavy), revealed that the new rule may increase slightly the permissible length of briefs. The first 10 pages of the brief averaged 286 words per page, the first 20 pages 290.1 words, and the brief in toto averaged 289 words per page.
Comment by Ted Metzler — May 15, 2007 @ 11:09 am
I don’t see the new requirements for amici as particularly onerous. We already have to ask the parties’ consent (except for government amici), so the notice is no big deal. For petition-stage briefs, 30 days after placement on the docket is essentially the same as the current deadline of concurrent with the opposition, unless respondent gets an extension. The 9000 word limit is a little shorter than the current 30 page limit.
The big disappointment is that the Supreme Court has not followed the lead of the FRAP and made amicus briefs on the merits due 7 days after the brief of the party supported. We are admonished not to repeat the arguments of the party but don’t necessarily know what those arguments are at the time we are drafting ours. Often, the party will let us know, but some write their briefs at the last minute and some are just uncooperative.
Comment by Kent Scheidegger — May 15, 2007 @ 2:31 pm
Yeah! Does this mean electronically filed petitions, motions, and applications as well? This change truly brings a more accessible Supreme Court-house to disabled assistive technology users, as well as demonstrates the Supreme Court’s taking global warming seriously by eliminating unnecessary vehicle trips and mass cutting of trees to make all that climate endangering paper. Way to go!!
-Mary Kay Day-Petrano
Comment by Mary — May 15, 2007 @ 4:17 pm
Mary, unfortunately for the trees, “The electronic transmission requirement is in addition to the requirement that booklet-format briefs be timely filed.” (Revised Rule 25.8.)
Actually, this requirement is just being elevated from the informal “Guide for Counsel” into the official rules.
Comment by Kent Scheidegger — May 17, 2007 @ 6:24 pm