By Louis J. Manetti, Jr.
Hinshaw & Culbertson, LLP
Judge Easterbrook recently issued a chambers opinion that
reminds appellate litigants that not all software functions are equally useful
for determining the word count for an appellate brief. In Vermillion v. Corizon Health, Inc., Judge Easterbrook was alerted
to the case when the appellees moved for permission to file a brief in excess
of the 14,000 word limit. 906 F.3d 696, 696 (7th Cir. 2018). The appellees
explained that although the appellant had certified that his brief contained
less than 14,000 words, it actually contained 16,850 words. Id. The appellees asked for leave to
file a brief containing 408 words on top of that already-excessive sum. Id.
The Court confirmed that the appellant’s brief was, in
fact, over the allowed word limit, struck the brief, and ordered the appellant
to show cause why he shouldn’t be penalized for falsely certifying the word
count. Id. In response, the appellant
asked the Court to reinstate his brief because there were 15,315 words reported
in the “Properties” tab of Microsoft Word. Id.
He claimed that if the words expressed in Federal Rule of Appellate Procedure
32(f) were subtracted, and that, by his understanding, words in the brief
citing “the record and appendix” were also excluded under the rule, he was
under the word cap. Id. at 696-97.
Judge Easterbrook pointed out two problems with this
claim. First, the “Properties” tab in the Word software does not give an
accurate representation of the word count as the Seventh Circuit defines it. Id. at 697. That specific tab omits
footnotes from the word count, and under Court rules footnotes count towards
the total amount. Id. This alone
amounted to over 1,000 words in the appellant’s brief. Id.
Second, Judge Easterbrook held that the appellant was
misreading what kinds of words were excluded by Rule 32(f). The appellant
argued that citations to the record and the appendix must not be included in
the word count because they are not mentioned in Rule 32(f). Id. But Rule 32(f) is a list of
exclusions: “Only those matters that are
mentioned in Rule 32(f)’s list are excluded. Everything else counts.” Id. (emphasis in original).
In the end, Judge Easterbrook ordered the appellant to
file a conforming brief, and noted that each party would be subject to the
14,000 word limit. Id. The case
serves as a useful reminder that appellate litigants should take care to comply
with the word limits imposed by the Federal Rules of Appellate Procedure.
