Word Limits and Page Limits are Real: The Rules Against “Incorporating Arguments by Reference”

You might think 50 pages or 12,300 words, in the Virginia Court of Appeals, or 30 pages or 13,000 words, in the federal courts of appeals, would be more than enough space for a lawyer to get out an argument. If you do, you’re probably underestimating lawyers’ capacity to natter on. Most of us will admit to having complained about the onerous restrictions of court rules that limit pages or words in a brief.

Which is why we might be tempted to “incorporate by reference” an argument made in an earlier brief or a separate filing in a piece of litigation. We tell ourselves that “incorporating by reference,” is just efficient. It spares megabytes in pdfs and pulp from trees. But we also figure that by pointing to some other document, that has really important words in it that we don’t have space in our brief to use, we’re cleverly getting around the court’s page and word limits.

The US Court of Appeals for the Federal Circuit recently reminded us that we’re not as clever as we think.

In Promptu Systems Corp. v. Comcast Cable, the Federal Circuit admonished counsel for Comcast that “[w]e have repeatedly held that incorporating argument by reference ‘cannot be used to exceed word count’ [and that it] is ‘fundamentally unfair to allow a party to use incorporation to exceed word count.’ That is exactly what would have occurred here had [Comcast] been allowed to in[1]corporate by reference almost 2,000 words from a brief in a separate case.”

Counsel for Comcast, who explained he did not know about the Court’s precedent prohibiting incorporating other arguments by reference, narrowly escaped being sanctioned by the Court. But the Court’s order put the world on notice, or at least the world consisting of practitioners in the Federal Circuit, that future violators are likely to be punished.

Note that the Federal Circuit’s rule stems from its interpretation of Federal Rule of Appellate Procedure 28 which permits incorporation of arguments by reference only in cases where there are multiple appellants or multiple appellees. In those cases, and only those cases, one party may incorporate by reference the argument of another party. That permissible and limited use of “incorporation by reference,” implies that other attempts to do the same thing are forbidden.

No such fancy footwork is necessary to get to the same result in Virginia appellate practice. In the Supreme Court of Virginia, incorporation of arguments by reference is outright prohibited by Rule 5:26(f). Ditto for the Court of Appeals of Virginia in Rule 5A:19.

Finally, Polonius was right that “brevity is the soul of wit and tediousness the limbs and outward flourishes.” The Supreme Court agreed, a few hundred years later, that “[b]revity is enjoined as the outstanding characteristic of good pleading.”  Point taken.  Speak better.  Incorporate less.