The Briefs on the Merits - Bna

Ch. 13.3 <strong>The</strong> <strong>Briefs</strong> on the Merits 703
for reply briefs. <strong>The</strong> methods of reproduction are the same as for petitions for
certiorari, discussed in Sec. 6.23, supra. In addition, Rule 24.6 requires briefs
to be, inter alia, “concise” and “free of irrelevant, immaterial, or scandalous
matter.”
An application may be submitted to the Court or a Justice for leave to
file a longer brief for good cause, “but application for such leave is not favored.”
Rule 33.1(d). <strong>The</strong> application must comply with Rule 22, which governs applications
to individual Justices. Under Rule 33.1(d), such an application “must
be received by the Clerk at least 15 days before the filing date of the document
in question, except in the most extraordinary circumstances.” Since most
lawyers will not know how long their briefs will be that far in advance of the
due date, this restriction in itself handicaps the submission of a successful
application. Consequently, few applications to file longer briefs are made, and
ever fewer are granted. 4
<strong>The</strong> 2007 revision of Rule 33 clarified what items need not be counted
in the word limitation. Rule 33.1(d) now reads:
<strong>The</strong> word limits do not include the questions presented, the list of parties and
the corporate disclosure statement, the table of contents, the table of cited authorities,
the listing of counsel at the end of the document, or any appendix.
<strong>The</strong> word limits include footnotes. Verbatim quotations required under Rule
14.1(f), if set out in the text of the brief rather than in the appendix, are also
excluded.
<strong>The</strong> 2007 revision of Rule 33 removed the previous uncertainty as to
whether the listing of counsel at the end of the document violated the page
limit when it ran over onto a page, which was sometimes unnumbered, following
the last permitted page of the brief. Rule 33.1(d) now explicitly excludes
the listing of counsel at the end of a document from the word limits.
<strong>The</strong> original version of this rule stated that the page limitations “are
exclusive of the questions presented page,” suggesting that the questions presented
could not exceed one page. <strong>The</strong> new word limits remove this uncertainty
as well. In most cases, to be sure, the questions need not and should
not be longer than one page. But there may well be cases in which competent
counsel cannot conscientiously keep the questions that short—particularly if
an introductory paragraph is needed to make the questions intelligible.
Longer questions have been accepted so far without challenge. Counsel
should be aware, however, that the Court frowns on unduly long questions.
Sec. 6.25, supra. Adherence to the questions presented in the petition for
4In Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the petitioners requested leave to file a
50-page reply brief in response to four briefs, totaling 188 pages, filed by the respondents. <strong>The</strong> Court
permitted a 30-page reply brief.
In response to a motion for a consolidated briefing schedule filed by the Solicitor General, the
Court entered this order in AT&T v. Iowa Utilities Board, 522 U.S. 1101 (1998), a complex case involving
cross appeals and numerous parties:
Petitioners may file briefs, not to exceed 50 pages, only on the questions presented in their petition
on or before April 3, 1998. Cross-petitioners/respondents may file briefs, not to exceed 75
pages, that both respond to petitioners and address the questions presented in the cross-petitions
on or before May 18, 1998. Petitioners may file briefs, not to exceed 50 pages, that both reply on
their issues and respond to cross-petitioners’ issues on or before June 17, 1998. Cross-petitioners
may file briefs, not to exceed 25 pages, that only reply to cross-respondents’ briefs on or before
July 17, 1998.