Vol. 34, No. 6
Amendments to Appellate Rules Concerning Type Size and Word Count
by Andrew M. Low
If you need contacts or glasses to read, the Colorado Supreme Court feels your pain. The Court has adopted changes to five appellate rules, effective July 1, 2005, increasing the required type size in all briefs and appellate papers from 12-point to 14-point (or larger). The only exception is for the few appellate papers prepared on a typewriter; those can still be submitted in 12-point.
At the same time, the Court has switched from a page limit to a word limit for full-length briefs. Under the current version of C.A.R. 28(g), principal briefs can be up to thirty pages in length. Under the amended rule, the same brief is limited to 9,500 words. The limit is about the same either way—a thirty-page brief in 12-point type contains about 9,500 words. There is no need to count words manually. For papers prepared using a word-processing program, the author may rely on the program’s word-count feature, and the word limits do not apply to papers produced on a typewriter. The full text of the amended rules is available in The Colorado Lawyer and on the Colorado Bar Association website.1
Background of the Amendments
The amendments to the Colorado Appellate Rules2 are based on similar changes adopted by the federal appellate courts in 1998. The federal appellate judges had found that constant reading of 12-point type strained their eyes. They also received many briefs that obviously had been manipulated to squeeze more words than usual onto each page in order to meet the page limit. Such briefs were even more difficult than usual to read, which the judges did not appreciate.3 The federal judges believed that reading 14-point type would be easier on their eyes and that switching to a word limit would remove the incentive to attempt to evade the page limits.
The federal experiment has been a success. Judges and practitioners in the circuit courts of appeal agree that it is easier and faster to read briefs using 14-point type. In addition to the larger type, double-spacing at 14 point produces more white space between lines, which contributes to ease of reading.
Also, the use of a word count instead of a page limit completely removes the incentive to use formatting strategies to shorten a brief to fit the page limit. For example, current C.A.R. 32(a)(5) allows up to twenty-six lines of text on each page. If a lawyer complies with the margin requirements, however, a full page of double-spaced text contains fewer than twenty-six lines. As a result, some lawyers who wrote a thirty-two-page draft brief simply switched from double spacing to 1.9 or 1.8 spacing, thereby fitting a full twenty-six lines on each page. The thirty-two-page draft magically became thirty pages long. Other techniques have been used as well to make a brief fit into thirty pages without actually deleting text. Nevertheless, as long as each word counts against the limit, the only effective way to shorten a brief is to remove words.
Most lawyers report a (very) short adjustment period as they become accustomed to the new larger type requirements. After reading only a few of the new briefs, lawyers and judges in the federal appellate courts became converts and report that they would not want to go back to the smaller type.
Features of the Amended Rules
The amended rules provide a word limit for each of the appellate papers that currently have page limits. Principal briefs are 9,500 words, while reply briefs can be up to 5,700 words.4 Petitions for rehearing, formerly up to six pages long, are now limited to 1,900 words.5 Petitions and cross-petitions for certiorari and briefs in opposition to certiorari can contain up to 3,800 words.6 Reply briefs in support of certiorari are allowed 3,150 words.7 The various word limits are intended to create no change in the permissible length of each paper.
When a brief or appellate paper is subject to a word limit, the paper must include a certificate by the lawyer or pro se party confirming that the paper complies with the rule and stating the exact number of words in the paper. Only words in the main body of the paper count against the limit. Words in the following sections do not count: caption, table of contents, table of authorities, certificate of compliance with word limit, certificate of service, and any addendum of statutes or rules. Headings, footnotes, and quotations do count against the word limit.8 Lawyers may rely on the word-count feature of their word processing programs to count words.
Lawyers who use Microsoft Word® should be aware of a potential trap in its word-count feature, found at [Tools]–[Word Count]. To make the word count include footnotes, the user must check the "include footnotes" box. Otherwise, the program excludes all words in footnotes. Lawyers will find it easiest to set up briefs with only the sections subject to the word count contained in a single document, and other sections (caption, certificates) in a second document. That way, as the document gradually lengthens, the user can check progress against the word limit with a few mouse clicks.
Some briefs are so short that they obviously are below the word limit, and it was thought unnecessary to require those briefs to include a word-count certificate. Thus, each of the amended rules contains a "safe harbor" number of pages. For opening briefs, for example, any brief that is thirty pages in length or less in 14-point type requires no word-count certificate. Only if the brief goes over thirty pages does it require a certificate that the brief complies with the word limits. A similar safe harbor is built into each of the amended rules.
The amended rules also clear up two ambiguities in the current rules about the format of briefs. First, although the standard practice is to single space headings and footnotes, current C.A.R. 32(a)(2) technically prohibits doing so. Second, the popular and readable typeface Times New Roman, which has been used in briefs for years, is technically prohibited. C.A.R. 32(a) currently requires use of the archaic "pica" typeface, in which all letters are exactly the same width. The amendments to C.A.R. 32(a) legalize current practice in both situations.
Finally, the Court took into account that in some cases it can be difficult to fit the caption onto one page. If necessary to make it fit, amended C.A.R. 32(a)(1) permits the use of 12-point type for the case caption only.
The amendments will make briefs easier to read and will remove the temptation to compress an over-long draft, rather than editing it. The amended rules are simple and easy to apply, and they will clear up a number of problems with the existing rules.
1. See "Court Business," 34 The Colorado Lawyer 131 (April 2005); http://www.cobar.org/tcl/tcl_articles.cfm?ArticleID=4091.
2. C.A.R. 27(d), 28(g), 32(a)-(b), 40(b), and 53(a)-(d).
3. See, e.g., TK-7 Corp. v. Barbout, 966 F.2d 578 (10th Cir. 1992) ("While we appreciate the savings in time and labor made possible by such technological innovations as word processing, we regret the temptation they pose to the wordy to compress, rather than edit.").
4. C.A.R. 28(g).
5. C.A.R. 40(b).
6. C.A.R. 53(a)-(c).
7. C.A.R. 54(d).
8. C.A.R. 28(g).
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