, Case No. 10-2713, the Seventh Circuit issued a warning to counsel who misrepresent the word counts in their appellate briefs - doing so could result in the dismissal of your appeal.
less..
Abner involved an appeal from the grant of summary judgment to the defendant in a suit under the False Claims Act.
Fed. R. App. P. 32(a)(7)(B) describes the word count limitation for appellate briefs and Fed. R. App. P. 32(a)(7)(C) requires that a party certify compliance with that word count. The appellants certified that their brief contained 13,877 words, which was less than the 14,000 word limit. In a footnote, the appellee noted that appellants' brief exceeded the 14,000-word limit — that it contained 18,000 words excluding the portions of the brief that Rule 32(a)(7)(B)(iii) exempts from the word limit. The appellant did not file a reply brief or otherwise respond.
The Court issued an order to show cause "why their brief should not be stricken and/or sanctions imposed for failing to comply with Rule 32 and making a false representation to the court." Counsel for the appellants responded that he had "inadvertently considered only the words included in the argument section of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor in citations made within parentheticals)." The Court found there was no ambiguity in the Rule. Then, the Court started to seriously criticize the appellants' counsel.
Had appellants filed an 18,000-word brief with a truthful certificate, the brief would have been rejected; there would have been no occasion for sanctions, just as there is no occasion for sanctions when a brief is rejected for omitting a statement of the standard of review or the date on which the judgment was entered, which is essential to determining the timeliness of the appeal. We reject many briefs for these and similar reasons. The problem here, by contrast, is a misrepresentation that was initially successful in averting rejection of the brief. The misrepresentation would have gone unnoticed had the appellee not called it to our attention.
...
The response to the order to show cause, and the belated "Motion for Leave to Exceed Word Count" filed with it, advance no persuasive grounds for allowing an oversized brief to be filed, and so the brief is stricken. We could go further. As the Supreme Court pointed out in
Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), a court has the authority "to fashion an appropriate sanction for conduct which abuses the judicial process," including the "particularly severe sanction" of dismissal.
...
The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.
Therefore, the Court summarily affirmed the district court's decision.
There are a couple of takeaways from this opinion. First, don't play around with the word count when filing a brief with the Seventh Circuit. Doing so will expose you and your client to sanctions. Second, always check your opponent's word count certification. The Court may not do so on its own and you may find that this issue alone may result in a victory on appeal.
