Creativity can be a valuable asset in litigation. Making a novel legal argument or presenting the facts in a new way may help produce positive results for a litigant. But a creative approach to word counts is not a good idea. Two appellants who took a novel approach to the rules governing the length of briefs found that out the hard way when the US Court of Appeals for the Federal Circuit dismissed their appeal for failure to comply with the applicable rules. (Pi-Net Int'l v. JPMorgan Chase & Co., No. 2014-1495, (Fed. Cir. Apr. 20, 2015).)

The Federal Rules of Appellate Procedure set numerous formatting requirements for briefs that are often supplemented by the courts of appeals' local rules. Regarding the length of principal briefs, the rules give parties the option of complying with any of three limitations:

(FRAP 32(a)(7) and see Fed. Cir. R. 32(b).)

If the brief is shorter than 14,000 words but longer than 30 pages, it must include a certification by counsel or a self-represented party stating the number of words in the brief. The individual making the certification may rely on the word count from the software used to write the brief. (FRAP 32(a)(7)(C).)

Employing a technique of first impression, the appellants in Pi-Net International squeezed together words by deleting spaces or adding punctuation. For example, the appellants modified the five-word citation 28 USC §§ 1331, 1338(a) to the single "word," 28USC§§1331,1338(a). They similarly reduced the 14-word case citation Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) to Thorner.v.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012), which their word processor counted as one word. The appellants then certified that, according to the software, their brief was shorter than 14,000 words.

The appellee did not appreciate the appellants' originality. It moved to file an oversize appellee's brief, asserting that it had to respond to a brief that would substantially exceed the 14,000-word limit if formatted properly. The Federal Circuit held the motion in abeyance and ordered the appellants to show cause why the court should not strike their brief and dismiss their appeal.

The appellants responded that one of them was pro se and the other had inexperienced counsel, that they had worked very hard to comply with the word limit and that using abbreviations is common practice in the patent world. They also requested permission to file a corrected brief that would reduce the word count by replacing phrases and citations with abbreviations and acronyms rather than squeezed-together "words."

The Federal Circuit concluded that neither the filed brief nor the proposed corrected brief complied with the applicable rules. Rather than focusing their presentation, the appellants were attempting to file overly long briefs. The court therefore dismissed the appeal with prejudice.

Practical Law has resources that can help litigants understand and comply with the rules governing the preparation of appellate briefs in the Federal Circuit, including: