New SCOTUS word limits sharpen focus on writing

Dollens

Before the day’s emails start filling her inbox or after her children are asleep, Lucy Dollens will use the quiet time to settle in front of her computer and write the arguments or offer a perspective she hopes will persuade an appellate court.

Dollens, managing partner of Quarles & Brady’s Indianapolis office, also chairs the Amicus Committee for the Defense Trial Counsel of Indiana. The organization often fields requests from defense attorneys to write a friend of the court brief in support of their client or position. While any one of the attorneys in a pool of volunteers can take the lead on writing, occasionally she will handle the job of putting the words on paper.

Usually Dollens begins by writing the most important point or strongest arguments that DTCI wants to make in a particular case. From there, she proceeds to get everything on paper, then goes back and looks for places to edit and cut.

However, the key to getting the work done is the quiet.

“My process,” Dollens replied when asked how she writes a brief, “is finding time when I’m free from distractions.”

Perhaps the nine justices of the country’s highest court were thinking about time, and the amount of it they spend reading briefs, when they did a little editing to the court’s rules.

In a change effective July 1, the U.S. Supreme Court reduced the number of words litigants and friends can use in their submissions. The word limit for briefs on the merits of the case was slashed by 2,000 to 13,000. Also, amicus briefs were slimmed down to 8,000 from 9,000, although briefs from some entities such as federal agencies and state attorneys general were exempted from the reduction.

Sullivan

Retired Indiana Justice Frank Sullivan noted a case on appeal has typically been subjected to a number of judicial reviews and, as a result, produced multiple briefs. At the U.S. Supreme Court, for instance, the justices have access to all the briefs from the lower courts, as well as the briefing done especially for them.

The Indiana Supreme Court, too, relies on the briefs filed with the Indiana Court of Appeals. Consequently, Sullivan said, the arguments for taking the case and the merits are limited to the trim 4,200-word petition to transfer because the Hoosier justices can pull the appellant’s and appellee’s briefs filed at the Court of Appeals, which each are allowed to balloon to 14,000 words.

Sullivan, now a professor at Indiana University Robert H. McKinney School of Law, noted the U.S. Supreme Court is clipping briefs on the merits by just 13%. He does not expect the new word limits will cause much consternation because the nine justices can still read the briefs from the lower courts and attorneys will still be able to write thousands and thousands of words.

“From my own experience, editing always improves writing and word limits force editing,” Sullivan said. “Telling a lawyer he or she has to reduce the length of a brief by 13% might just make the brief 13% better.”

A friend of the court

Dollens and her counterpart, Tara Worthley, Amicus Committee chair for the Indiana Trial Lawyers Association, said their groups carefully consider each request to write an amicus brief. Researching and writing the briefs take time, all of which the attorneys volunteer, so the organizations want to be sure their individual interests align with the legal matter being argued.

Namely, they want to highlight to the court the broader implications any ruling would have on the law or public policy. The briefs might point out how courts in other states have ruled, draw attention to a provision in the statute that needs to be clarified, or underscore an unintended consequence a certain holding may bring.

Crafting the arguments or framing the issue is a collaborative process, both committee chairs said. Even though one attorney may do the bulk of the writing, the other members of the committee will provide input and guidance, as well as a thorough review of the finished product.

Worthley

“Teamwork is critical,” Dollens said. “We have some incredible authors who step up to write these briefs. It’s made my job enjoyable to work closely with the authors.”

Worthley, attorney with Langer & Langer in Valparaiso, described a good amicus brief as getting to the “meat and potatoes of the issue.” It should dispense with reiterating the facts of the case and duplicating what is in the other briefs. Instead, it should provide information and education to the court that might not come to light by just looking at the specific facts of the case.

A good friend of the court brief is direct, to the point and reliable, Worthley said. The word limits, rather than posing a hurdle, help the amicus writers keep the brief focused.

Indiana Solicitor General Thomas M. Fisher noted the courts are not alone in reading the briefs. When he is preparing for an oral argument, he will review the amici briefs to see if there is an issue or perspective he might have to address in court.

Likewise, the word limits will also help attorneys prepare, Fisher said. Pointing to the 20-plus amici briefs that were filed in the Indiana civil forfeiture case, Timbs v. Indiana, 586 U.S. __ (2019), he acknowledged he had to choose where to focus his energy.

Briefs doing battle

Measuring the success of the brief can be difficult. Sometimes the courts will pick up an analysis or arrive at a conclusion presented by an amicus. Other times, the influence will be more ethereal, with the perspective offered in the brief helping to shape the opinion or popping up years later.

“You never know when something is going to have an impact,” Worthley said.

Fisher

Fisher noted Indiana clearly saw the fingerprints of its brief in the U.S. Supreme Court’s June ruling in Virginia Uranium, Inc. et al. v. Warren, et al., 16-1275, upholding Virginia’s ban on uranium mining. The question the majority considered was whether the Atomic Energy Act preempted Virginia’s law that regulated uranium mining.

In its amicus brief, which was joined by Washington, Oregon and Massachusetts, among others, Indiana argued for preemption. Specifically, it asserted that 42 U.S.C. § 2021(k) of the AEA enables some state laws to regulate what is also regulated by the federal government. And in order to override the preemption, some words would have to be struck from the provision and others would have to be changed.

To illustrate its point, the state included the provision with a line through a couple of sentences and the changed words in bold. Tucked in the majority’s opinion was the same illustration.

An Indiana law was under scrutiny in CTS Corp. v. Dynamics Corporation of America, 481 U.S. 69 (1987). The lower courts had ruled the Hoosier statute governing hostile takeovers of a company based in Indiana was not only preempted by the Williams Act but also violated the Constitution’s Commerce Clause.

However, in a decision that “shocked the world,” Sullivan said, the U.S. Supreme Court majority found for Indiana. Sullivan credited the brief filed by CTS’s attorneys at Barnes & Thornburg with reframing the theory of the case and swaying the justices. They argued the issue was not about takeover law or the Constitution, but rather about the ability to set regulations for corporations in the state.

The CTS case shows what a good brief should do, Sullivan said. Namely, it should identify the law and apply it to the case at hand. During his tenure on the Indiana Supreme Court, that is what he was looking for when he read the briefs.

“From my standpoint,” he said, “what I wanted was to be educated on, first and foremost, the law that applies in the circumstance and then, second, how the law applies to the facts before the court.”•

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