Amendments to Federal Appellate Rules Effective Today

by Kirsten E. Small

Quite a few amendments to the federal court rules became effective today, but since this is an appellate blog I'm only going to discuss the changes to the Rules of Appellate Procedure.

(1) "Housekeeping" Amendments

Rule 1 is amended to make clear that the definition of "state" includes the District of Columbia, federal territories, and commonwealths (i.e., Kentucky, Massachusetts, Pennsylvania, and Virginia.)*

Rule 4 is amended to replace references to Civil Procedure Rule 58(a)(1) with references to Rule 58(a).

(2) Amicus Disclosure Rules Let's suppose you are not satisfied with the 14,000-word limit for a principal brief (Rule 32(a)(7)(B)) and you either don't want to ask for extra pages or your request has been denied. What's a lawyer to do? Engage an amicus, of course! The federal courts of appeal have long suspected "that amicus briefs are often used as a means of evading page limitations on a party's briefs." Glassroth v. Moore, 347 F.3d 916, 919 (11th Cir. 2003).

As one commenter aptly noted, "A court is entitled to know whether a brief is submitted by a friend of the court or the friend of a party." Amendments to Rule 29 aim to curtail the improper use of amicus briefs by mandating certain disclosures.

New Rule 29(c)(5) requires "a statement that indicates whether:

(A) a party's counsel authored the brief in whole or in part;
(B) a party or party's counsel contributed money that was intended to fund preparing or submitting the brief;
(C) a person--other than the amicus curiae, its members, or its counsel--contributed money that was intended to fund prparing or submitting the brief and, if so, identifies each such person."

The revised rule is modeled on Supreme Court Rule 37.6, enacted in 1997.


*I got that list by Googling "States that are Commonwealths." I kid you not.