United States Supreme Court, Clerk of the Court, Rules Committee: Proposed Changes to United States Supreme Court Rules

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To: Clerk of the Court

Attn: Rules Committee

Supreme Court of the United States
1 First Street, N.E.
Washington, D.C. 20543

From: The Committee on Appellate Courts of the California Lawyer’s Association’s Litigation Section

Date: November 29, 2018

Re: Invitation to Comment On Proposed Changes to United States Supreme Court Rules

In response to the Supreme Court’s announcement that it will entertain comments on the four proposed changes to its Rules, the Committee on Appellate Courts of the California Lawyer’s Association’s Litigation Section respectfully submits its comments on those changes. Established when the State Bar of California was restructured in 2018, the California Lawyer’s Association is a nonprofit, voluntary organization and the new home of the Sections of the State Bar of California and the California Young Lawyers Association. Our extensive membership represents the vast diversity of California’s legal community and the various areas of law practiced throughout the state. In particular, the Committee on Appellate Courts consists of members who are primarily or exclusively appellate lawyers and routinely weighs in on proposed changes to appellate rules and practices in federal and state courts.

1. The Committee has no objection to the proposed changes to Rules 14 and 15, which would require: (1) counsel filing a petition for writ of certiorari to provide in that petition a “listing of all proceedings in state and federal trial and appellate courts, including proceedings in this Court, that are directly related to the case in this Court;” and (2) a party opposing a petition for writ of certiorari to identify in its brief any “directly related cases” not identified in the petition. Both changes are designed to assist the Court in screening potential conflicts without imposing unreasonable burdens on counsel.
2. The Committee supports the proposed change to Rule 25, which would require a reply to be filed no later than 10 days before oral argument rather than the current “one week” requirement. Allowing the Court additional time to review reply briefs is not only helpful to the court, but also to the respondent, who will have additional time to consider the arguments in a reply brief and be prepared to address the Court’s questions at oral argument.
3. The Committee also supports the proposed change to Rule 29, which simply clarifies that the Supreme Court remains an official “paper” filing court. That change simply makes “clear that paper remains the official form of filing, and that the timeliness of a filing turns upon when the paper version was submitted to the Clerk’s Office.” In an age where many courts are turning to e-filing either in conjunction with or in lieu of paper filing, this is an important clarification.
4. The Committee opposes the proposed changes to Rule 33, which would reduce the word limits for briefs on the merits by petitioners and respondents from 15,000 words to 13,000, for reply briefs on the merits from 6,000 words to 4,500, and amicus briefs on the merits from 9,000 to 8,000 words.

Given the importance of the issues presented to the Supreme Court, and the need to respond not simply to the opposing party’s brief, but sometimes also to points raised in amicus briefs (particularly those by the Solicitor General), the Committee would recommend leaving the current limits in place, particularly for reply briefs. While the Supreme Court’s current word limits are somewhat more generous for opening and answering briefs on the merits than the Supreme Courts of some states, as well as the general limits for federal appellate courts set forth in the Federal Rules of Appellate Procedure, see infra, its current limits for the reply briefs are already substantially less generous.

U.S. S. Ct. (Current)
Opening Br.: 15,000
Answering Br.: 15,000
Reply: 6,000
Amicus (Merits): 9,000

U.S. S. Ct. (Proposed)
Opening Br.: 13,000
Answering Br.: 13,000
Reply: 4,500
Amicus (Merits): 8,000

Cal. S. Ct.
Opening Br.: 14,000
Answering Br.: 14,000
Reply: 8,400
Amicus (Merits): 14,000

Texas S. Ct.
Opening Br.: 15,000
Answering Br.: 15,000
Reply: 7,500
Amicus (Merits): 15,000

N.Y. Ct. App.
Opening Br.: 14,000
Answering Br.: 14,000
Reply: 7,000
Amicus (Merits): 7,000

Fed. R. App. P.
Opening Br.: 13,000
Answering Br.: 13,000
Reply: 6,500
Amicus (Merits): 6,500

9th Cir.
Opening Br.: 14,000
Answering Br.: 14,000
Reply: 7,000
Amicus (Merits): 7,000

5th Cir.
Opening Br.: 13,000
Answering Br.: 13,000
Reply: 6,500
Amicus (Merits): 7,000

2d Cir.
Opening Br.: 14,000
Answering Br.: 14,000
Reply: 7,000
Amicus (Merits): 7,000

If the Rules Committee disagrees, one potential middle ground would be for the Court to cap the opening and answering briefs at 14,000 words, and leave the reply at 6,000.

We appreciate the opportunity to provide our comments.

Contacts:

Committee on Appellate Courts
Katy Graham
Committee Chair
Senior Appellate Court Attorney
Court of Appeal, Second Appellate District
(805) 641-4753
katy.graham@jud.ca.gov

Mary-Christine Sungaila
Haynes and Boone, LLP
600 Anton Blvd., Suite 700
Costa Mesa, CA 92626
(949) 202-3062
MC.Sungaila@haynesboone.com

Anne Voigts
King & Spalding LLP
601 S. California Ave., Ste. 100
Palo Alto, CA 94303
(650) 422-6710
avoigts@kslaw.com

California Lawyers Association
Saul Bercovitch
Director of Governmental Affairs
California Lawyers Association
(415) 795-7326
Saul.bercovitch@calawyers.org