That's a lot of paper.

Photographer: Dimas Ardian/Bloomberg

Lawyers Can Write Shorter, But It'll Cost Them

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It may not seem that significant to a civilian. But a rule-change that will lower the maximum length of appellate briefs from 14,000 words to 13,000 words , effective Dec. 1, is getting plenty of pushback from the lawyers who specialize in federal appeals. To the readers, a 7 percent reduction in legalese is definitely good news. Yet to the writers, it could mean a 7 percent reduction in billable hours -- and in revenue. That’s no small matter. The economics of appellate law are already pretty tenuous from the standpoint of managing partners who employ appellate specialists, often against their will.

Before getting to the money, let’s start with what appellate lawyers like to call “the merits” -- that is, who’s right and who’s wrong. Is it a good idea to cut the briefs’ length?

The primary interest group seeking a reduction is the federal judges who have to read the things. On average, they must consider some 1,200 cases a year. That’s a lot of cases, and a lot of words.

In practice, workloads vary significantly among the courts of appeal. Some circuits have more judges per appeal than others. And different circuits rely to varying degrees on lawyers in the circuit clerk’s office to handle routine matters. Yet all the appellate judges work pretty hard -- often harder than their counterparts on the U.S. Supreme Court, who hear fewer than 80 cases a year and rely heavily on their law clerks to review petitions from the parties who want the court to consider their cases.

Before you get too sympathetic to the federal judges, however, recall that they, too, have law clerks -- three or four per judge, depending on how the judge chooses to allocate staff. The clerks have to read every word of the appellate briefs and summarize them in “bench memos” they submit to their bosses. Judges still have a moral obligation to read the briefs. But with a good bench memo at hand, it’s a lot easier to read them fast.

Law clerks live in an atmosphere that combines terror about making a mistake, modesty about their limited knowledge (because they’re typically only a year or two out of law school) and an intoxicating (if somewhat doubtful) sense that they are having an impact at the beginning of their legal careers. They work their tails off -- I know I did -- and would no doubt benefit from shorter briefs.

But making life easier for law clerks isn’t a good reason to deny the lawyers involved the opportunity to express themselves more fully. If there’s a reason to cut the length of appellate briefs, it’s that the extra thousand words are a waste of time.

That’s frequently the case. Admittedly, there are sometimes extremely complex cases that require detailed explanation of the facts or the law. But an appellate case is supposed to operate with simplified facts -- in part by the assiduous efforts of the district court judge.

As for the law, it shouldn’t be too complex to be accessible to the rest of the legal community, to say nothing of the public. At a minimum, the law should be comprehensible to lawyers who are not expert in the particular area -- like judges. Brevity encourages that simplicity.

On the merits, then, shortening briefs is a good thing. So why the opposition?

I’ll give you a hint: The answer isn’t that appellate lawyers like to hear themselves talk. It’s that appellate lawyers have to justify their services -- not to their clients, but to their bosses.

Here’s the paradox of appellate law today: It’s highly prestigious, but not very good at generating revenue. Ordinary litigation can be a huge revenue source for a large firm that throws lots of bodies at a case and gets long hours of thorough work out of them. Discovery can take months or years, and often requires review of many thousands of documents. Trials can take months. Creating a record is backbreaking, time-consuming work.

What’s more, if the case isn’t settled to avoid the cost of litigation, that’s generally because both sides think they can win. Such conditions imply an asymmetry of judgment between the parties. That’s prime territory to ensure that the client pays big time. Such litigation can cost millions of dollars -- and sometimes tens or scores of millions.

In contrast, appeals generate chump change, because they’re so elegantly simple. The factual record is fixed. The brief length is limited. The only labor involved is brainwork: The appellate lawyers read the record, study the law and produce the brief. The oral argument takes half an hour, and typically involves just a single lawyer, not a whole litigation team working round-the-clock for months.

In an industry where hourly billing is the norm, that means appellate briefing is the cheapest game in town. For a cost that’s a tiny fraction of most litigation, the client has a chance to reverse a bad outcome.

That’s good for clients, and bad for law-firm managers. Big firms need appellate practices so they can provide one-stop shopping to clients. But the real reason big firms have appellate shops is that the lawyers who work in them carry the prestige of high performance at top-ranked law schools, fancy clerkships and sometimes high-end government experience.

All that is good advertising for the firm, but it’s far from clear that the advertising is worth the cost of paying dedicated appellate lawyers. Those appellate advocates who don’t moonlight as regular litigators need to justify their paychecks by billing as much as they can. A 7 percent reduction in their per-case work product makes that harder.

The word-length reduction is good for the legal system. For the appellate advocates, there’s a simple answer: Don’t charge by the hour; charge by the challenge. Clients may not always know the difference between brilliant legal advocacy and a hack job. But they should.

  1. For an idea of how big of a difference that is, I filed this column at a little over 1,000 words. Then my editor cut it by 6 percent.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net