Appeal practice in Spain: long is out, footnotes are in

For Kat readers who agonize whether prolixity or brevity is the better approach in drafting court appeals, IP practitioners in Spain have now been given their marching orders. Kat friend Colm Ahern of Elzaburu in Madrid summarizes that the Spanish Supreme Court has decided—long appeal briefs are out (but footnotes are finally in).

“On January 27th, the Spanish Supreme Court published new regulations on appeals, which for the first time restrict the length of the appeal to 25 pages. This is likely to be received with horror by some IP attorneys, who have been quite accustomed to sending in at least three times that much. The Court complains about the “exorbitant length” of many appeals, which—

"far from facilitating judgment, increase the level of difficulty during the admission phase, hamper correct understanding of the appellant’s petitions, add confusion to the debate and frequently provoke that the really relevant arguments remain hidden in an accumulation of reiterated or even contradictory pleadings”.

Surely not? The Court backs up its decision with an explicit reference to article 481.1 of the Civil Procedural Act which, paradoxically, calls for the legal grounds to “be set forth with the necessary length”. As if all this were not upsetting enough, attorneys are now faced with a regulation restricting the font size to “10 points in footnotes”. The upsetting part is of course not the 10-point font, but rather the very idea that footnotes might be used in a court submission. Such literary innovations have long been considered heresy by a profession which prides itself on tradition.

However, the new regulations are not limited to style and consolidate many substantive improvements in access to appeal. In the past, this depended entirely on meeting the technical criteria laid down in the statutory rules concerning economic value or contradiction of precedent. The Court will now in exceptional circumstances consider appeals where, “in the opinion of the Supreme Court”, there exists a need to create or modify case law due to the fact that the “social reality or the common opinion of the legal community has evolved in relation to a certain matter”. Although standard fare in other jurisdictions, this exercise of court discretion is the exception rather than the rule in Spain, which up to now has clung to the idea of a numerus clausus. The grounds of appeal were limited to those explicitly provided for by statute. This had not changed and the court has no discretion to refuse to allow appeals to proceed if these grounds are met. Indeed, this is a central aspect of the constitutional right of access of the citizens to the courts, one of the resounding successes of Spain’s democratic system.

These changes are evidence of the continuing modernization of the Spanish court system, which will be warmly welcomed by IP practitioners. As these ideas trickle down to the lower courts, they can only add to Spain’s current advantage in relation to the speed of proceedings: 12 to 14 months for a first instance judgment in a patent or trademark case, provided one picks the right court. This is due in no small measure to the fact that the Spanish procedure is one of the most front-loaded in the world – all documentary evidence and expert reports must be supplied with the claim, with no opportunity to do so later or to change legal and factual pleadings.”