That Pascal quote encapsulates why I strongly disagree with Noah Feldman’s Bloomberg column on the new word limits for federal appellate briefs. 

The new rules reduce the number of words in opening briefs by 1,000, and in reply briefs by 500.  Feldman argues that the reduction will cut down billable hours.  He’s wrong; it will do the opposite.

When I was in practice, I spent nearly as much time cutting words from briefs as I did doing the initial draft.  Every first draft clocked in at more than the then-limit of 14,000 words; in some cases, I was closer to 21,000 words my first time through.  Only after substantial editing – going over each sentence again and again, and (naturally) taking serious liberties with Bluebook format – was I able to bring briefs within the limit.  (I never went this far, though.)

(Note to Lexis:  You are at a disadvantage relative to Westlaw because your citation format for unpublished cases has more words. I did initial research on Lexis but then translated all citations to Westlaw to bring my word count down.  Rookie mistake, guys.)

For what it’s worth, I think the new limits are a travesty.  Judges often berate attorneys for prolix writing – particularly when they’re drafting complaints, while trying to meet increasingly byzantine pleading standards – and it’s unfair.  Yes, there are extreme cases of bad writing and bad lawyering, but at the end of the day, if lawyers had the talent of Hemingway, they wouldn’t be lawyers, and there’s a certain limit to what can be reasonably demanded.  Judges assume that if word limits are reduced, lawyers will cut the excess verbiage – usually unnecessarily florid language, hyperbole, etc – but there is just no assurance of that; lawyers often ex ante misjudge what is hyperbolic and what is substantive.   The wasted pages are a small price (for clerks) to pay in order to make sure that attorneys can get their arguments heard.  (Especially in light of evidence that word reductions harm appellants more than appellees, which I assume is due to the fact that the appellee has the district court opinion to function as a supplementary brief on its behalf).

Frankly, if there’s a pressing need to reduce judges’ reading load, I recommend jettisoning the reply brief.   Though certainly many plaintiffs make good use of replies, in my experience both as a clerk and in practice, the vast majority of replies did nothing more than repeat arguments in the opening brief, without truly responding to the arguments made in the response brief.  So if something has to be cut, that’s what has my vote.