The Briefs on the Merits - Bna

Ch. 13.2 <strong>The</strong> <strong>Briefs</strong> on the Merits 701
the progress of the argument calendar,” the Clerk doubtless will continue to
give heed to that factor in considering applications for extensions of time.
If a case has been advanced for a hearing, the time for filing the briefs on
the merits “may be abridged as circumstances require pursuant to an order of
the Court on its own motion or that of a party.” Rule 25.4. Cases in which the
Court ordered briefs to be filed sooner than normal are listed in Sec 14.4, footnote
19, infra. When certiorari is granted late in the term, or at the beginning
of a new term, it is not unusual for the Court to advance the briefing schedule.
13.2 Physical Form, Number, and Color
<strong>The</strong> physical form of the brief is the same as for the petition for certiorari,
as described in Rule 33. See Sec. 6.23, supra.
Forty copies of the brief, duplicated pursuant to Rule 33.1, are required
to be filed. <strong>The</strong> Clerk will not accept briefs in word-processed double-spaced
format, as is commonplace in federal courts of appeals. All merits briefs must
be printed in booklet format, in conformance with Rule 33.1, in clear Century
family (e.g., Century Expanded, New Century Schoolbook, or Century
Schoolbook) 12-point type, with footnotes in Century family 10-point type,
and with 2-point or more leading between lines. Rule 33.1(b). <strong>The</strong> 2007 revision
of Rule 25 added a requirement that “[a]n electronic version of every
brief on the merits shall be transmitted to the Clerk of Court and to opposing
counsel of record at the time the brief is filed in accordance with guidelines
established by the Clerk.” Rule 25.8.
Counsel must print additional copies of the brief for their own use and
to serve opposing counsel. Under Rule 29.3, when the brief conforms to Rule
33.1, “three copies shall be served on each other party separately represented
in the proceeding.” If more than three copies are desired, counsel must make
their own arrangements.
A party allowed to proceed in forma pauperis should file with the Clerk
one typed copy of the brief on the merits and serve one typed copy on each
other party separately represented in the proceeding. See Rule 29.3. <strong>The</strong> Clerk
will then supervise the printing of the brief for in forma pauperis parties and
will arrange to have each party or counsel receive three copies of the printed
brief. See Sec. 8.15, supra. It should be noted that, where the petitioner or
appellant has been permitted to proceed in forma pauperis, the 30-day period
for filing the opposing brief on the merits runs from the date when the respondent
or appellee receives the typed copy—not the printed copy—of the
opening brief of the petitioner or appellant.
Apart from the in forma pauperis situation, however, the Court will not
permit the filing of any brief on the merits that does not comply with Rule
33.1. 2 That rule prescribes the methods of reproduction, the page and type
2 In particularly urgent cases, the Court may establish an expedited briefing and argument schedule
and permit the initial filing of briefs in unprinted form. But in that event, it is expected that the
unprinted briefs will be replaced by printed ones as soon as possible. See National League of Cities v.
Brennan, 419 U.S. 1100 (1975), where, as a condition to the continuance of a stay order, the filing of
jurisdictional statements and replies thereto was expedited, the order stating: “Neither the jurisdictional
statements nor the replies need be initially printed.” (Emphasis added.)