Most practicing Delaware attorneys can probably rattle off page limit requirements in their sleep, given how frequently we hear this question from out-of-town counsel.
Limits vary case-to-case based on differences scheduling orders and other circumstances, but below we've summarized some of the default limits set by the District of Delaware local rules, standing orders, and our judges' form scheduling orders.
[The irony of subjecting readers to a long post on word limits is not lost on me.]
The General Rule
Under LR 7.1.3, most motions are limited to:
- Opening briefs = 20 pages
- Answering briefs = 20 pages
- Reply briefs = 10 pages
Everything must be double-spaced and in at least 12-point font (LR 5.1.1). That count excludes “any table of contents or table of citations,” and the accepted Delaware practice also excludes any cover page and signature blocks as well. However, using tables to shorten your word count can be risky.
Which Judges Use Word Limits?
Chief Judge Connolly requires a word count certification with every brief, and this makes sense because his preference is that litigants use 14-point font in all filings (including footnotes).
Judges Andrews and Noreika permit litigants to elect to use 250 words per double-spaced page in lieu of the default local rule on page limits. This flexibility makes it possible to incorporate diagrams, for example, without being penalized under the default page limit rule.
If you're applying word limits, double check that your word count tool includes footnotes! We've seen footnotes overlooked more than once for failure to click a checkbox.
Form Scheduling Orders Also Specify Page or Word Limits for Particular Filings
Not all filings are subject to the 20-page limit set forth in the local rules. District of Delaware judges use different page limits for certain kinds of filings, as noted in their form scheduling orders. The parties can also try to stipulate to something different than these default limits, but the Court often rejects attempts to modify page limits.
Motions to Amend and Strike
Judge Williams and Judge Burke provide special guidance for motions to amend and motions to strike in their cases. These motions should be supported by a 3 page letter, to which the opposing party may file a 5 page answering letter, and the moving party may file a 2 page reply letter.
Discovery Disputes
Our judges generally use accelerated discovery dispute resolution processes which require an exchange of opening and answering letters briefs which are both limited to 3 pages (single-spaced), except Judge Fallon who permits 4 pages (single-spaced) for both opening and answering letter briefs. That said, it is not uncommon for the Court to vary from the discovery dispute page limits set forth in the form scheduling order, depending on the issue.
Claim Construction Briefing
With some exceptions, many District of Delaware Judges limit litigants by word count rather than page count in the claim construction briefing.
Claim construction briefs frequently include blocky components like claim construction charts and figures.
Judge Andrews makes clear that pictures, figures from the patent, other illustrations, representative claims, and agreed-upon claim constructions do not count against the word limits, nor does the table listing terms in dispute, competing constructions, and why resolution to the dispute matters.
Judge Noreika and Judge Tennyson require certification if the joint brief is longer than 80 pages, allowing litigants to explain deviation from the limits (e.g., formatting issues, listing of agreed-upon terms, etc.).
Summary Judgment and Daubert Motions
Parties often want more than the usual space to brief dispositive motions, but they typically do not get it. Parties may try to secure longer limits in the original proposed scheduling order. Else, they could try a stipulation, but extending page limits is generally an iffy endeavor under best circumstances, so delaying the stipulation until just before the due date may result in scrambling to cut words at the last minute when that stipulation gets denied.
All the judges—except Judge Connolly and Judge Andrews—use the following limits:
- Concise Statement of Fact with Opening Brief = 6 pages
- Opening Brief = 40 pages
- Concise Statement of Fact with Answering Brief = 6 pages (response) + 4 pages
- Answering Brief = 40 pages
- Moving Party's Response to Opposing Party's Concise Statement = 4 pages
- Reply Brief = 20 pages
Judge Andrews does not specify word limits for the concise statement of fact or responses, but otherwise he has the same page limits for briefing which are listed above. Judge Connolly uses a word limit:
- Concise Statement of Fact with Opening Brief = 1,750 words
- Opening Brief = 10,000 words
- Concise Statement of Fact with Answering Brief = 1,750 words
- Answering Brief = 10,000 words
- Reply Brief = 5,000 words
For all District of Delaware judges listed above, these limits apply per side, not per party, and they apply to the combined sum of all dispositive motion briefs if multiple briefs are filed.
If the moving party files a Daubert motion with its summary judgement motions, the judges increase the overall limits, but both summary judgement and Daubert briefs draw from the same pool:
For instance, before Judge Noreika, a moving party who files no summary judgment brief gets a 40-page opening brief. If that party also files a Daubert motion, they get a total of 50 pages of opening briefing, which can generally be allocated however they'd like among the SJ and Daubert motion.
In their respective scheduling orders, all but Judge Connolly, Judge Andrews, and Judge Hatcher warn that the Court should not receive more than a total of 250 pages (125 pages per side).
Motions in Limine
All judges’ form scheduling orders set the default length of each motion in limine as no more than three pages (opening and answering) with one page of reply. Each side, not party, may file no more than three motions in limine nor exceed these page limits. These limits are often strictly enforced.
Post-Trial Briefing
Form scheduling orders for all four magistrate judges, Judge Burke, Judge Fallon, Judge Hatcher, and Judge Tennyson limit each side (not each party) to 20 pages for opening briefs, 20 pages of answering briefs, and 10 pages of reply briefs. (ANDA cases may be addressed differently within the pretrial order for some judges.)
Judge Noreika's preferences indicate that post trial briefing in jury trials should conform to the default limits under LR 7.1.3 unless otherwise ordered. However, page limits for post-trial briefing in bench trials should be proposed in the pretrial order.
Happy cutting! Sometimes, it’s necessary to forego good arguments to allow the best ones to shine through.
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