Statutory Interpretation – Rule 32(f) – Form of Briefs

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7^th Circuit Court of Appeals

Case Name: Jay F. Vermillion v. Corizon Health, Inc., et al.

Case No.: 18-1517

Officials: EASTERBROOK, Circuit Judge.

Focus: Statutory Interpretation – Rule 32(f) – Form of Briefs

This case came to my attention, as motions judge, when the appellees sought permission to file a brief containing more words than the 14,000 permitted by Fed. R. App. P. 32(a)(7) and Circuit Rule 32(c). Jay Vermillion, the appellant, represented that his brief contains fewer than 14,000 words, after excluding the portions not counted by Rule 32(f). But appellees reported that their count of his brief came to 16,850 words. They sought parity and then some: 17,258 countable words for their brief.

Vermillion’s response asks me to reinstate his brief. He says that he started with a word count of 15,315, reported by the “Properties” panel in Microsoft Word, and subtracted the words in the cover, table of authorities, and other portions that do not count against the total. Finding that the count remained over 14,000, “Vermillion then discovered that Rule 32(f) does not specifically include the [brief’s] references to the Record and Appendix toward the wordcount” (Response at 6). He estimated that about 2,000 words in his brief cited the record and appendix. With these excluded, the count is well under 14,000 words. So, he insists, his brief complies with the rules and must be accepted.

Because Vermillion’s brief did not comply with the rules, my order striking it stands. He must file a new brief with fewer than 14,000 countable words. The count must start with the software’s “Word Count” panel and include footnotes. Only those items listed in Rule 32(f) may be excluded. Once Vermillion has filed a complying brief, appellees too will be subject to the 14,000 word limit. I will not allow them any more words than Vermillion receives. Circuit Rule 32(c), which affords everyone 1,000 more words than the cap in Rule 32(a)(7), reflects a view that 14,000 suffices for all but the rare cases with lengthy trials, complex administrative records, or multiple complex issues. This appeal is not in any of those categories.

Vermillion is litigating without the aid of counsel, and his response to my order shows that he tried to comply in good faith, although he misunderstood both Rule 32(f) and the right place to start in Microsoft Word. No sanction—beyond the work needed to prepare and file a compliant brief—is appropriate. The order to show cause is discharged. By separate order, the court will reset the dates for both sides’ briefs.

Order Discharged

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.