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Judge strikes brief for exceeding word count

October 24, 2018

A man who did not understand how to properly figure the word count in his appellant brief was ordered to rewrite it and explain why he should not be penalized for falsely representing that his original brief complied with the word limits.

Appellant Jay Vermillion represented that his brief in an inmate lawsuit contained fewer than the maximum 14,000 words permitted by Fed. R. App. P. 32(a)(7) and Circuit Rule 32(c), after excluding the portions not counted by Rule 32(f).

However, the appellees reported that their count of his brief came to 16,850 words and subsequently sought parity for 17,258 countable words for their own brief.

The 7th Circuit Court of Appeals found Vermillion’s brief contained 16,522 countable words and thus struck it, ordering him to file a new brief with fewer than 14,000 words.

Vermillion requested to have his brief reinstated on grounds that it complied with the rules and must be accepted. Vermillion contended he started with a word count of 15,315, reported by the “Properties” panel in Microsoft Word, and subtracted the words in the cover, table of authorities, and other portions that do not count against the total.

Vermillion then discovered that Rule 32(f) does not specifically include the brief’s references to the Record and Appendix toward the word count and estimated that about 2,000 words in his brief cited the record and appendix. With these excluded, he insisted the count was well under 14,000 words.

But the 7th Circuit found two issues with Vermillion’s argument. First, that the “Properties” panel in Microsoft Word was not designed to count all words in a document and fails to include footnotes. Vermillion’s brief contained “about 1,000 words in footnotes,” Judge Frank Easterbrook wrote in a published order in his capacity as motions judge.  

“Second, the fact that Rule 32 does not ‘specifically include’ any category of words does not imply that they don’t count toward the limit,” Easterbrook continued. “… (T)he fact that Rule 32(f) does not mention citations hardly justifies their exclusion from the word count. Only those matters that are mentioned in Rule 32(f)’s list are excluded. Everything else counts.”

“Because Vermillion’s brief did not comply with the rules, my order striking it stands,” Easterbrook wrote. “He must file a new brief with fewer than 14,000 countable words. The count must start with the software’s ‘Word Count’ panel and include footnotes. Only those items listed in Rule 32(f) may be excluded.”

The opinion further noted that Vermillion was litigating pro se and his response to the order “shows that he tried to comply in good faith,” despite his misunderstanding of Rule 32(f) and the right place to start in Microsoft Word.

“No sanction — beyond the work needed to prepare and file a compliant brief — is appropriate. The order to show cause is discharged. By separate order, the court will reset the dates for both sides’ briefs.”

The case is Jay Vermillion v. Corizon Health, Inc., 18-1517.

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