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Supreme Court considers changes to length of briefs

Author / Coordinator: Michelle Lore
Minnesota Lawyer
October 2000

Recently proposed amendments to court procedural and practice rules were designed to provide greater clarity and predictability, according to those involved with the drafting.

Some of the changes that the rules advisory committees recommended include:

  •   implementing an alternative measure of appellate brief length based on word count;
  •   adopting specific guidelines for the submission of supplemental authorities in appeals;
  •   clarifying the time at which filing of pleadings is complete; and
  •   expanding the time for the filing of post-trial motions.

New rule would limit fun with fonts

The proposed amendments to Rule 132 of the Rules of Civil Appellate Procedure would regulate font sized based upon whether the font used is monospaced or proportional. With a monospaced font, each character has the same width — whether it is a larger letter such as “m” or a smaller letter such as “i.” Typewriters employ a monospaced font. Both PCs and Macs generally come with Courier (New) as their main scalable monospaced font.

Proportional fonts, on the other hand, are fonts in which different characters have different pitches — or widths. Thus, with a proportional font, a larger letter such as “m” is allocated more space than a smaller letter such as “i.” The use of proportional fonts saves space and allows more characters per line by reducing the amount of unused “white space” between the letters.

Under the proposed rule changes, if a monospaced font is used for a brief, printed or typed material (including headings and footnotes) would be required to appear in a font that produces a maximum of 10 ½ characters per inch.

If a proportional font is used, printed or typed material (including headings and footnotes) would be required to appear in at least 13-point font.

Three advisory committees to the Minnesota Supreme Court submitted the recommendations to the court for changes to the Rules of Civil Procedure, the Rules of Civil Appellate Procedure and the General Rules of Practice. The high court has indicated that it will consider the proposed amendments without a hearing after soliciting and reviewing comments on the proposals.

“This is the first time we have submitted simultaneous reports,” observed Minneapolis attorney David F. Herr, who is the reporter for all three advisory committees. “There were things that needed to be changed in all three sets of rules.”

According to Herr, the proposed amendments are not intended to change practice; rather, they are intended to make clear what current practice is and increase predictability in the litigation process.

While several changes to each set of rules have been proposed, “there shouldn’t be anything controversial here,” said Herr. “They are not ‘earth shaking,’ but they are important.”

Minneapolis attorney Sharon Van Dyck, who handles numerous appeals, predicted that the proposal to allow for briefs to be measured by word count rather than page count could prove a shock to some attorneys who don’t practice in the federal system. (The federal rules already have a word-count provision.)

While the first time attorneys use the alternative word-count system would be unsettling, “once they see how it works, they should like it,” she opined. Mankato attorney Kenneth R. White, who serves on the advisory committee, said that the impetus for changing the rule is that the page-length method of limiting space “leads to ... lots of creative uses of spacing, like [adjustments] in fonts and footnote sizes. ... With modern word processors, [attorneys] can fit a whole lot more into 50 pages now.”

The full text of the proposed rule amendments appeared in the Oct. 16 edition of Minnesota Lawyer.

Appellate rules

The Advisory Committee on the Rules of Civil Appellate Procedure has proposed a total of 10 amendments to the rules. The committee recommends:

  •  amending Rule 103.03 to explicitly provide for appealability of orders modifying custody, visitation, maintenance and support;
  • amending Rule 105 to clarify application of direct appeals to the Supreme Court and revising page limits;
  • adopting a new Rule 109 to establish and collect in one place the procedures applicable to proceeding in forma pauperis;
  • adopting a new Rule 110.02 to allow the filing of transcripts in electronic form;
  • amending Rule 110.02 to clarify the proper avenue to seek appellate review of denial of an extraordinary writ;
  • providing for submission of supplemental authorities;
  • amending the rules on amici curiae briefs to eliminate the automatic stay provision and require disclosure of interest;
  • modifying Rule 132 to provide for an alternative measure of brief length based on word count;
  • modifying the taxation of costs process; and
  • correcting minor errors in Rule 131 and in Form 117.

Of particular interest to appellate attorneys will undoubtedly be the proposal to modify Rule 132, which relates to brief length and format.

The proposed rule would give attorneys several options. They would be able to utilize the traditional page-length rule — although it would be shortened from 50 pages to 40 pages — or they would be able to submit a brief with a maximum of 14,000 words or 1,300 lines of text in a monospaced font. Reply briefs would be limited to 20 pages, 7,000 words or 650 lines. The proposal also sets requirements for font size.

Attorneys who opt to utilize the word- or line-count limitation would also sign and submit a “Certification of Brief Length” form indicating their compliance with these requirements.

White does not anticipate that the rule change would greatly impact or upset appellate attorneys. “[But] it does add one more hoop to jump through as you are putting together the brief,” he said, adding that it would be necessary to run a word count on the brief and sign the word-count certification form.

Moreover, attorneys are not actually losing much room, said White, explaining that 14,000 words in 13-point Times New Roman font — which is fairly common — is about 48 pages.

The other aspect of the proposed rule change, said White, is that attorneys would still be allowed to use page numbers as their guide to brief length — although they would be required to do so in 40 pages rather than 50.

White also observed that while the current rule allows 11-point font, the proposed rule mandates a minimum of 13-point font. “It is a recognition that we have members of the bench who do nothing — at work and at home — but read for large blocks of the day,” said White. “We’ll have a less eye-strained judiciary.”

Minneapolis attorney Steve G. Heikens, whose practice includes both litigation and appellate work, observed that currently some lawyers use small fonts rather than ask the court for more pages. “It is a shame that we have to go to these lengths, but lawyers have a tendency to push the limits,” he said.

Nonetheless, the rule should not disturb the vast majority of appellate attorneys, said Heikens, especially since “a similar rule has been used in the federal courts for a while now.”

Moreover, Heikens noted, most lawyers’ computers will automatically count the words in their briefs. “There may be some people — maybe 2 to 3 percent — who still use typewriters,” Heikens predicted, “but they can go by pages then.”

The proposal providing for submission of supplemental authorities to the court after a brief has been filed or argued “will allow parties to bring significant changes in the law to the court’s attention,” said White.

According to Heikens, however, “most of us who practice appellate law already do it.”

Van Dyck agreed. What the proposal does is formalize something that a lot of attorneys are doing anyway — whether by formal motion or simply by letter to the court copied to opposing counsel, she said.

However, Van Dyck noted, it is not clear whether the proposal as currently written would apply only to new cases that come down during the pendency of the appeal or whether it would also apply to cases that were simply missed when researching and writing the brief. “If something is just missed, there is a sense of unfairness there,” she added.

White observed that other than the brief format proposal, “there is nothing terribly dramatic” in the proposed appellate rule changes. “Even that is more of a perception problem than a reality problem,” said White.

Civil procedure

The five proposed amendments to the Rules of Civil Procedure are:

  • amending Rule 5 to clarify that filing, like service, is complete upon mailing; * amending Rule 10 to require that the name of the judge be identified in the caption of cases;
  • modifying the rules governing the timing of post-trial motions
  •  making it explicit in Rule 63.03 that a judge specially assigned to complex cases cannot be removed by notice to remove (if Minn. Gen. R. Prac. 113.03(b) is amended); and
  • amending Rule 65 — relating to injunctions — to incorporate a fourth subdivision drawn verbatim from its federal counterpart.

According to advisory committee member Christopher Dietzen, “The purpose of the committee is to provide an opportunity to make recommendations to the Supreme Court to clarify those rules that need to be clarified.”

One of the most discussed proposed rule changes, said Dietzen, relates to the timing of post-trial motions — specifically motions for a new trial, directed verdict, and judgment notwithstanding the verdict.

The proposed rule change is intended to avoid the problems that have arisen in the trial court’s ability to hear post-trial motions in a timely matter, said Dietzen.

The proposal extends the time frame for filing post-trial motions from 15 to 30 days and for hearing these motions from 30 to 60 days. This should lessen the burden on litigants and courts to see that the motions are heard in a timely matter, Dietzen observed.

“Attorneys are probably going to love it,” said Dietzen, adding that the only ones that may have concerns with it are some members of the plaintiffs’ bar. “If they get a big judgment, ... they will have to wait a little longer to work out the post-trial issues,” he said.

“[Nonetheless], in the grand scheme of things, it simply allows a more reasonable time to hear post-trial motions,” said Dietzen.

Minneapolis attorney Wilbur W. Fluegel, who is on the board of governors for the Minnesota Trial Lawyers Association, does not anticipate the proposed amendment will be controversial.

Minnesota Supreme Court cases have made it clear that the deadlines for post-trial motions will be strictly adhered to unless good cause is shown, Fluegel explained. The proposed rule change seems intended to provide relief from the short 15-day filing deadline and provides some flexibility, he continued.

The proposal to amend Rule 5 to state that filing, like service, is complete upon mailing, simply clarifies existing practice, said Dietzen. “It is [currently] assumed but not provided for, so we wanted to make that clarification.”

Fluegel agreed. “[The amendment] establishes with clarity what practitioners assume should be the case,” he said. “This makes it clear for people.” General practice rules

The Advisory Committee on the General Rules of Practice has also made some suggested rule revisions. They include:

  • amending Rule 113 to make it appropriate to assign complex cases to a single judge for all hearings;
  • adopting a formal procedure to request assignment by the chief justice of similar cases pending in more than one district;
  • considering adoption of a reduced-cost litigation track on a pilot project basis;
  • amending Rule 145.06 to incorporate existing statutory requirements governing structured settlements;
  • adopting a new Rule 113 to accommodate confidentiality of Social Security numbers and tax returns when filed in family court;
  • modifying Rule 114.13 to put the continuing education requirements for ADR neutrals on the same three-year reporting cycle as for CLE hours.
  • amending Rule 521 to include expressly the requirement that corporations appealing a conciliation court decision be represented by an attorney.

According to Albert Lea attorney Phillip A. Kohl, who is a member of the advisory committee, the proposed amendment to Rule 113 — which deals with the assignment of complex cases to a single judge — is an attempt to clarify the current rule.

“As it reads now, the rule is not used much,” said Kohl. People are not using it because they think that in order for it to apply, they must have an asbestos case, or some other huge, complex matter, he continued.

The proposed amendment makes it clear that “the rule applies in a lot of cases where it makes sense to have one judge decide what’s going to happen,” said Kohl. For family law practitioners, the proposal amendment regarding confidentiality of Social Security numbers and tax returns may be of particular interest. Under the proposal, documents containing social security numbers should either be submitted on a separate form entitled “Confidential Information Form” or filed in a form that removes these numbers. Similarly, tax returns must be filed in a separate envelope labeled “Confidential Tax Return.”

Kohl indicated that the proposal is statutorily driven as confidentiality is required under both state and federal law. It is intended to relieve court administration staff from the task of maintaining the confidentiality of Social Security numbers and tax returns. Under the proposal, primary responsibility for maintaining privacy is with the persons submitting the information to the court.

Despite the fact that the proposal mandates an additional step when filing information with the court, family law attorney Patrice M. Hockings believes it is a good idea. “If it is something that I’d appreciate having done for myself — which I would — then I don’t mind the extra step,” said Hockings.

Moreover, Hockings observed, the proposal would likely help attorneys to alleviate client concerns over the nature of their personal information. Hockings recently received a call from the ex-wife of a client she represented in a divorce proceeding who was in great distress over the fact that her personal information — such as Social Security number and income — had been made public record.

The new rule will ensure that the information is kept confidential, said Hockings, adding that in actual practice, the confidentiality of this information is rarely maintained as it should be.

Kohl does not believe that any of the committee’s proposed amendments to the General Rules of Practice will inspire much controversy. “When we work on the rules, we are trying to make them standard throughout the state and [provide] a handbook [for] the courts and make life easier for everyone.”

Individuals wishing to provide statements in support or opposition to the proposed amendments should submit 12 copies in writing to: Frederick K. Grittner, Clerk of the Appellate Courts, 25 Constitution Avenue, St. Paul, Minnesota, 55155, no later than Friday, Dec. 1, 2000.