1. Navigating the New Changes to the Federal Rules of Appellate Procedure
Tips and Best Practices
Adam Hansen
Jeff Justman
Navigating the New Changes to the Federal Rules of Appellate Procedure: Tips and Best Practices

2. Overview Changes to the Federal Rules of Appellate Procedure
Reduction in word limits for briefs
Changes to certificates of compliance
Elimination of three-day service period
Amicus briefs
Tips and tricks for navigating the new rules
Variations to these rules by circuit
Eighth Circuit rules
Other traps for the unwary

3. New Rules Effective December 1, 2016
SUPREME COURT OF THE UNITED STATES
ORDERED:
“That the foregoing amendments to the Federal Rules of Appellate Procedure shall take effect on December 1, 2016, and shall govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”

4. Reduction in Word Limits for Filings
The Big Change (Rule 32(a)(7)):
Principal briefs (where there is no cross appeal) must be no more than 13,000 words
Used to be 14,000
Reply briefs (where there is no cross appeal) must be no more than 6,500 words
Used to be 7,000

5. Reduction in Word Limits for Filings
But the Committee Notes Contemplate Longer Briefs for Complex Cases:
“In a complex case, a party may need to file a brief that exceeds the type-volume limitations specified in these rules, such as to include unusually voluminous information explaining relevant background or legal provisions or to respond to multiple briefs by opposing parties or amici. The Committee expects that courts will accommodate those situations by granting leave to exceed the type-volume limitations as appropriate.”
Should counsel seek brief length extensions in complex cases?

6. But Some Circuits Vary The Rules on Brief Length
Some circuits have maintained the 14,000 word limit on briefs, as a matter of local rules
Second, Seventh, Ninth Circuits

7. Word Counts Abound
The New Rules Systematically Replace Page Limits with Word Limits for Electronically-Filed Documents
Motions (Rule 27(d)(2)):
5,200 words (used to be 20 pages)
Petitions for Hearing or Rehearing (Rule 35(b)(2)(A) and 40(b)(1)):
3,900 words (used to be 15 pages)
Permission to Appeal (Rule 5(c)):
Writs (Rule 21(d)):
7,800 words (used to be 30 pages)
Appellee Brief in Cross-Appeal (Rule 28.1(e)(2)(B)(i)):
15,300 words (used to be 16,500 words)
Handy New Appendix: Length Limits Stated in the Federal Rules of Appellate Procedure

8. Word Count: What Counts?
Signature Blocks No Longer Need To Be Counted (Rule 32(f)):
Items Excluded from Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not:
the cover page;
a corporate disclosure statement;
a table of contents;
a table of citations;
a statement regarding oral argument;
an addendum containing statutes, rules, or regulations;
certificates of counsel;
the signature block;
the proof of service; and
any item specifically excluded by these rules or by local rule.

9. Time To Appeal: Eliminating Uncertainty
New Rules Clarify that the Filing of Untimely Post-Trial Motions Will Not Toll the Notice of Appeal Deadline
Rule 4(a)(4)(a): “If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion”
Old Rule: “[i]f a party timely files in the district court” certain post-judgment motions, “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.”
Committee Notes: A motion made after the time allowed by the Civil Rules will not qualify as a motion that, under Rule 4(a)(4)(A), re-starts the appeal time—and that fact is not altered by, for example, a court order that sets a due date that is later than permitted by the Civil Rules, another party’s consent or failure to object to the motion’s lateness, or the court’s disposition of the motion without explicit reliance on untimeliness.
Bottom Line: You need to file your post-trial motions on time (28 days after judgment under FRCP Rules 50 and 59) in order to toll the notice of appeal deadline

10. No More 3-day Mailing Rule
New Rules Eliminate 3-day Mailing Rule For Documents Served Electronically
Rule 26(c): “Additional Time after Certain Kinds of Service. When a party may or must act within a specified time after being served service, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service.”
Rationale (from the Committee Notes): “[C]oncerns [about the reliability of electronic service] have been substantially alleviated by advances in technology and widespread skill in using electronic transmission.”
Bottom Line: When served electronically, you no longer get to add 3 days to respond

11. New Rule for Rehearing Stage Amicus Briefs
New Rule 29 (b) Governs Amicus Filings During A Court’s Consideration of Whether to Grant Panel Rehearing or Rehearing En Banc
Private Parties Still Must Seek Leave of Court (Rule 29 (b)(2))
Briefs Limited to 2,600 Words (Rule 29 (b)(4))
Due 7 Days After the Petition or Response (Rule 29 (b)(5))
Committee Notes: “A court remains free to adopt different rules governing whether amicus filings are permitted in connection with petitions for rehearing, and governing the procedures when such filings are permitted.”

12. New Eighth Circuit Rules—effective Dec. 2016
Rule 3B—Appeal Information Form (deleted)
Rule 33A—Prehearing Conference Program (deleted)
Rule 25A(b)—Documents that must be filed electronically
CJA vouchers and attachments
Rule 25A(c)—Documents that may be filed electronically
Documents initiating proceedings under FRAP 5, 15, or 21
Petitions for review in the first instance

13. Tips for Navigating The Appellate Rules
Check the appellate websites for jurisdiction-specific guidance
Local rules, internal operating procedures, checklists
Contact the clerk’s office
Send your briefs to confirm compliance with the rules
Review recently filed briefs and the docket—inquiry notice
Ask others who have filed briefs recently

14. Circuit-Specific Tips
Second Circuit
Font size of case number, PDF pagination
Fifth Circuit
Certificate of interested persons, electronic record on appeal
Seventh Circuit
Verify procedural compliance:
Jurisdiction and documents under seal
Table of Authorities

15. Circuit-Specific Tips
Eighth Circuit Tips:
Ask your case manager
Extensions of time policy
Citation to appendix v. district court docket
Eleventh Circuit Tips:
Certificate of interested persons
Oral argument record

16. Questions? Any Questions? Adam Hansen, Apollo Law Jeff Justman
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Jeff Justman
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