The Message From The Judiciary Is Clear: Brevity Is Crucial In Legal Arguments

In both the Virginia Court of Appeals and federal courts of appeals, lawyers often find the allocated space for arguments insufficient due to restrictions on page or word limits. To circumvent these limitations, they resort to “incorporating by reference,” referring to arguments made in previous filings, according to Cullen D. Seltzer of Sands Anderson.

The US Court of Appeals for the Federal Circuit recently emphasized that this tactic cannot be used to surpass word count restrictions, citing it as unfair. In the case of Promptu Systems Corp. v. Comcast Cable, counsel for Comcast narrowly avoided sanctions for attempting to incorporate nearly 2,000 words from a separate case’s brief. The Federal Circuit’s ruling serves as a warning to future violators.

This restriction originates from the Federal Circuit’s interpretation of Federal Rule of Appellate Procedure 28, which allows incorporation of arguments only in specific cases with multiple appellants or appellees. In Virginia appellate practice, such tactics are explicitly prohibited by rules in both the Supreme Court of Virginia and the Court of Appeals of Virginia.

The message from the judiciary is clear: brevity is crucial in legal arguments. Thus, lawyers are advised to speak more effectively and incorporate fewer external references in their briefs.