Check the Rules Part VI – Recent Rule-Change Proposal Asks Lawyers To Curb Their Brief-Writing Enthusiasm
March 29, 2018
Perhaps I’m revealing too much about my abilities in a prior life to balance academic and social priorities, but does anyone else remember the “not less than X pages” page requirements for high-school and college term papers and the corresponding font, margin, and line-spacing tricks for getting the assignment over the finish line?
Well, it would appear that lawyers – being the “remarkably insecure and competitive group of people” that they are – suffer from the opposite affliction. According to a recent proposal from the Commercial Division Advisory Council to amend Commercial Division Rule 17 concerning length of papers, “attorneys have incentives to unfairly squeeze additional content into the allotted pages” and “have developed techniques to ‘cheat’ the limit.”
The Advisory Council’s proposal to amend Rule 17 seeks to eliminate the unfair and disingenuous “incentives” and “techniques” currently utilized by attorneys through the implementation of word rather than page limits on their submissions to the court.
The current Rule 17 provides that “(i) briefs or memoranda of law shall be limited to 25 pages each; (ii) reply memoranda shall be no more than 15 pages and . . . ; (iii) affidavits and affirmations shall be limited to 25 pages each.”
The Advisory Council’s Rule 17 proposal “substitutes word limits in place of the page limits set forth in the current rule: 7000 words (currently 25 pages) in briefs, memoranda of law, affidavits and affirmations; and 4200 words (currently 15 pages) in reply memoranda.”
I’ve seen enough decisions expressly referencing Rule 17 over the years to suggest that the Justices of the Commercial Division would support the change. Just two months ago, in Domingo v Bidkind, LLC, Manhattan Commercial Division Justice Saliann Scarpulla admonished the defendants’ counsel for “fail[ing] to adhere to the page limits provided in Commercial Division Rule 17 in this motion and in another related action.” Others, like former Kings County Commercial Division Justice Carolyn E. Demarest, have instituted “appropriate penalties” for Rule 17 violations – including, for example, in her Aish Hatorah NY, Inc. v Fetman decision from 2015 where she flat-out “disregarded” the latter 27 pages of a 52-page brief in support of a motion to renew and reargue. Former Westchester County and Manhattan Commercial Division Justices Alan D. Scheinkman and Richard B. Lowe, III issued similar penalties number of years ago in Reilly Green Mountain Platform Tennis v Cortese and LaRosa v Arbusman.
According to the Advisory Council, word limits, which are more precise and uniform in application, better serve the purpose and spirit of Rule 17 – namely, to “encourage attorneys to focus on strong, concise arguments, and ensure that judges and opposing counsel are not overwhelmed with meandering, repetitious briefs.”
Word limits on papers submitted in the Commercial Division also would conform to appellate brief-writing parameters currently operative in the First and Second Departments, which require parties to certify in writing that their submissions comply with the applicable word-count requirements.
Anyone interested in commenting on the proposed amendment to Rule 17 may do so by sending or emailing their comments to John W. McConnell, Esq. (firstname.lastname@example.org), Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY 10004.