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.