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.
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 . . .
. . . 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?