Page Limits and Parallel Citations Under Virginia's New Appellate Rules
Two minor changes in the new appellate rules have been generating way too much discussion (and far too many calls to the clerk's office) here at the Firm on the Move (TM).
On the theory that you, dear readers, operate on the same plane of nerdliness that we inhabit, we now confront two of the least pressing issues of our time: page limits and parallel citations.
Page Limits
The confusion about page limits stems from changes to Rules 5:17, 5:18, and 5:26. The old versions of these rules provided page limits for petitions and briefs. The new rules still limit the length of submissions, but state those limits alternately in the form of pages or words. For example, under Rule 5:17, a petition for appeal "shall not exceed 35 pages or 6,125 words."
See the problem? No? Look closer.
You can't tell whether the petition shall not exceed the greater of, or the lesser of, 35 pages or 6,125 words. The other page/word limits are similarly drafted.
(This is why people hate lawyers.)
Predictably, this sweeping change in the law has caused great anxiety among our brethren. Language has been parsed. Debates have been held. Calls have been placed to sources in the know. Listservs have been consulted.
And as a result, we are able to state with some conviction that:
- We have it on pretty good authority that the Rules mean that briefs "shall not exceed the greater of" the stated page limit or word count.
- Under no circumstances should you ever be approaching the page limit or word count anyway.
And if you thought that was silly . . .
Parallel Citations
. . . then there's the question of parallel citations. Sadly, we don't have a good answer for this one yet.
Here's the issue, such as it is. The old rules specified that citations to Virginia cases should cite to both the Virginia Reports and the Southeastern Reporter (at least in the table of citations). The new rules abolish this requirement, and simply require that citations to authorities include the year thereof.
Whither parallel citations?
In the last few briefs I've filed, I've cited only to the Virginia Reports. My colleagues call me a lazy, sloppy fool--and also criticize my decision to abandon parallel citations. I don't know which is the correct answer. I can think of arguments both for and against using parallel citations:
Arguments for parallel citations
- Even if the state court rules don't explicitly require them, parallel citations could arguably be proper Blue Book form. The Blue Book defers to state rules, but it favors citation to the regional reporter. See Rule 10.3.1; Bluepages B5.1.3; table BT.1.
- Presumably, the Court will continue to use parallel citations in its published opinions. Including them in your briefing will make things easier on the justices and their clerks.
- Parallel citations look more professional.
Arguments against parallel citations
- Parallel citations are useless and waste space. Everyone has access to Lexis, Westlaw, or Fastcase these days. The odds that anyone reading my brief will ever need a to pull a hard copy of a Virginia case from the Southeastern Reporter are negligible.
- Cite-checking parallel cites is a pain in the neck.
- I am lazy.
That's all I've got. What do you think? Am I slacking off, or are streamlined citations the way to go under the new rules?
Without minimizing the lesser/greater issue, I think the more important question is why anyone would ever use word count limits. Among other reasons to go with pages: the Court of Appeals provides generous word count limits; the Supreme Court's are very different and far less generous. The Supreme Court's word count limits, as translated to pages, are far below what actually fits comfortably on a page.
Put me in the continuing to use parallel citations camp. It has nothing to do with the Bluebook, which does not have every answer, is not infallible, and seems designed more for academic purposes than practitioner ones. (I say this as a journal editorial staff member in law school who still consults the Bluebook and does not seek to denigrate it but merely to be realistic about it.)
Thank you for this helpful information.
It might be because I have not yet had my morning tea, but it appears that you are saying that the page limit/word count issue boils down to: you only need to be compliant with one limit, not both. You have complied with the rule if you are within the page limit but exceed the word count limit, and if you exceed the page limit but are within the word count limit (although I do not think that would happen very often at all). Correct?
That's right, and that's probably a better way of thinking about it. You have to comply with one, but not necessarily both, of the limits.
Asking your opinion, because I'm genuinely curious: in what way do parallel citations look more professional than just citing to one official reporter? I assume that it appears professional because it's a courtesy to someone if they are without access to one reporter then they can consult another. Otherwise -- it seems perfectly reasonable to me that with the availability of case law in electronic databases or on free sites like Google Scholar, the need to do this is much diminished (i.e. your first bullet under arguments against).
Scott, I don't have a particularly good answer. Parallel citations look more professional to me because I am used to seeing them in the Court's published opinions and briefs from lawyers I respect. For example, I got a brief yesterday from Frank Friedman, a top-notch appellate lawyer. He goes parallel throughout.
I recognize that this is terribly subjective, and even a little circular--published opinions and briefs use parallel citations because that is blue book form, the blue book defers to local rules, and our local rules just abolished the need for parallel cites.
I agree with you that the change in the way people do research should obviate the need for parallel citations. Like many other blue book requirements, that rule can only be understood against the backdrop of a world where lawyers use typewriters and pull authority from books in a library. As you correctly point out, we no longer live in that world.
As for parallel citations, it has long been known that case cites distract a reader and slow them down, reducing retention. String cites are even worse. So anything that shortens or minimizes the distracting effect of a citation is preferable. It may even be best if courts required that all citations be in footnotes so that there is no distraction from their review of your argument, but we're not there yet.
James, I am symptathetic to your point, but I'm not sure if I'd follow you quite that far. I'm all for shortening citations, and in some case relegating them to footnotes. They are distracting and hurt reading comprehension. In the fact sections of my briefs, for example, I generally cite to the record footnotes. "J.A. 124" doesn't convey much useful information.
But I do think that a citation to a single reporter conveys relevant information about the importance of an authority pretty efficiently. For example, 550 U.S. 544 (2007) or 279 Va. 370 (2010) are probably authorities to note. An F. Supp. cite from the 1970s or an early Virginia Circuit Court reporter? Maybe not so much.
Parallel citations waste space and time. There is no need for them any longer. Just a holdover from another era (much like Courier fonts).