December 1 is an important day for federal litigators and for tax practitioners with cases pending in federal district and appellate courts. It brings with it changes to the rules governing their day-to-day practices. This year, those changes are few and simple but important.
First, electronic service no longer entitles litigants to three extra days to respond to something. Items not served personally have historically triggered what many practitioners referred to as a “mailbox rule” of three extra days to respond to the item, and the concept appears in Federal Rule of Civil Procedure 6(d) and Federal Rule of Appellate Procedure 26(c). For many years, items served electronically were inexplicably treated (contrary to fact) as if they were not delivered immediately. That is no longer the case. The rules have caught up to technology, and in district court and the courts of appeals serving an item by email or using the electronic case filing (ECF) system’s notice function will not give one’s adversary additional time to respond unless a local rule preserves the status quo, as Eastern District of Texas Rule of Civil Procedure 6 does.
Second, the courts of appeals have moved almost entirely to word-count limits for papers. For many years now, litigants did not have to comply with page limits for briefs if their papers complied with certain word-count limits. Other papers, however, such as motions and petitions had only page-count limits. Several applicable appellate rules (21 [mandamus petitions], 27 [motions], 29 [amicus briefs], 35 [rehearing en banc petitions], and 41 [rehearing petitions]) have been amended to include word-count limits. In addition, the word counts for briefs have been reduced from 14,000 to 13,000 for opening, response, and cross-appeal response-and-reply briefs; 16,500 to 15,300 for cross-appeal opening-and-response briefs; 7,000 to 6,500 for reply briefs. Please see McDermott’s modified table showing the applicable word limits for the most common pleadings. These reductions were controversial when proposed and many circuits have opted out of them, as indicated in their local rules. E.g., 7th Cir. R. App. P. 32(c).
Finally, appellate practitioners need to determine how courts are implementing the changes. Some courts are applying the old rules to appeals docketed before December 1, 2016, and the new rules to ones docketed on or after December 1, 2016. Others are using the setting of the briefing schedule as the line of demarcation, and some appear willing to modify the rules in the middle of a briefing schedule.
Practice Note: In light of these changes, now is a good time to review the local rules of the federal courts where your cases are pending or where you typically practice to ensure you are not dropping any deadlines or failing to meet your word counts.