Changing Technologies in Texas Appellate Law

Transcript

1. Adaptable Lawyer Track • State Bar Annual Meeting • June 13, 2019 Emerging Technologies in Appellate Practice, Don Cruse Law Office of Don Cruse don.cruse@texasappellate.com (512) 853-9100 or What You Will
2. Appellate World Has Had 
 Some Mixed Reactions to Technology
3. 2016-present: #appellatetwitter
4. 2016-present: #appellatetwitter
5. 2016-present: #appellatetwitter
6. 2010-2015: Appellate lawyers (and courts)
 were asked to be adaptable in a different way
7. The Court led the charge and said 
 what it wanted to see happen from
 June 2011 presentation
8. The Court led the charge and said 
 what it wanted to see happen from
 June 2011 presentation
9. And yet… “The inmates have really taken over the asylum here. It is an absurd proposition to contend that facility with electronic media ‘affects the court’s impression of your advocacy.’ Our duty is to learn and apply the law, not master geek works.” “Just another thing to learn how to do.” Comments from CLE programs. (Yes, someone reads them.)
10. What actually led to more 
 people making bookmarks? In 2013, it became required for appendix items (not the body) As they upgraded their office software to new versions, many counsel (or their staff) started to use Word “styles” to enable an automatic kind of bookmarking on PDF export
11. What actually happened with 
 hyperlinking within e-briefs? The Court built its own system that can fill in some of the gaps when attorneys do not add hyperlinks
12. What actually happened with 
 hyperlinking within e-briefs?
13. Today, there are careful explanations how, and videos of Justices explaining why. But linking remains up to you. from txcourts.gov/supreme
14. Everett Roger’s Innovation Curve image from Wikipedia “Technolo! Adoption Lifecycle”
15. Lessons for future change in appellate world? If it can’t be done in Word, it might not happen. There’s a big difference between rule changes and mere suggestions (even strong suggestions) For their own firms, lawyers can adopt tech from any stage of the innovation curve. But for changes involving the courts there has to be a path to accommodate the whole curve.
16. What Sorts of Innovation Have (Some) Appellate Lawyers Been Embracing?
17. Oral Argument Is Getting More Visual (but not that frequently) SCOTX installed this to make powerpoint easier
18. Oral Argument Is Getting More Visual
19. Oral Argument Is Getting More Visual This remains fairly rare. But some advocates are experimenting with maps, timelines, and blow-ups of statutory or contract text. The real competing “tech” is a bench book, which for many purposes may be better. Having a slide deck on-screen can change the flow of argument. How you or the court feels about that likely depends on the case.
20. Appellate Briefs Are Also Getting More Visual Examples from one of my briefs, 
 using evidence from the record
21. Appellate Briefs Are Also Getting More Visual
22. Appellate Briefs Are Also Getting More Visual
23. Appellant Briefs Are Also Getting More Visual If the visual can convey a complex point (like how a machine works or the physical relationship of two tracts of land), it can be easier for a busy judge to absorb than prose. Images that are screenshots of text (like a contract provision) might be harder to absorb. They’re harder to read and can’t be searched. I have the impression many advocates are adding images for physical color in the brief.
24. https://twitter.com/wendynather/status/1138479879295569920
25. Appellate Briefs Are Also Getting More Visual The Court is — at least jokingly — open to experiments.
26. What Has It Meant to Advocates To Have These Briefs Online?
27. Understanding recent procedural rulings 
 by looking at the jury charge Appellant briefs (and petitions) contain a kind of “mini record” for key case documents, which used to require sending a courier and hoping to access a paper file. It’s not a “pattern” charge, but it could be a helpful reference as you draft your own.
28. Looking behind petition histories: was the issue even raised in the petition? We’ve been writing “pet. denied” since 1997. But petitions do not raise every issue. Having the petitions online means you can see whether the “pet.” even raised the procedural issue that you’re interested in. (Many do not.) When there is a split among the courts of appeals, it can seem as if a “pet. denied” case is superior to a “no pet.” case.
29. SCOTX is working hard to put 
 even older petitions online, too
30. At scale, these briefs are fuel for machine learning—and marketing “white papers”   
    ARTIFICIAL INTELLIGENCE, PROMOTED, TECHNOLOGY You’re Bad at Legal Research, and Your Judge Knows It. One reason artificial intelligence is a hot topic in law: When attorneys miss precedents, the stakes are high. By JAKE HELLER, CASETEXT May 24, 2018 at 2:34 PM How good are you at legal research? However good you may think you are, the judges you litigate before likely have a different perception. Recent research conducted by Casetext uncovered that judges have a surprisingly consistent opinion of the work they see from us litigators: they believe attorneys miss important cases often, and when they do, it has real consequences in the course of a litigation. BIGLAW SMALL LAW LAW SCHOOLS IN-HOUSE LEGAL TECH JUSTICE GOVERNMENT CAREER CENTER INNOVATION Contract Analytics in Franchise Disputes – Read More Here.
31. At scale, these briefs are fuel for machine learning—and marketing “white papers”
32. ”Legal Analytics”
33. We have more data. What do we do with it?
34. https://texasappellate.com/talks.html If you want to see what I’ve done with that data, my talks are posted online:
35. What we (and the Court) use as metrics matters
36. “Great French Legal Analytics” ARTIFICIAL LAWYER CHANGING THE BUSINESS OF LAW LEGAL INNOVATORS CONFERENCE AL JOBS AL 100 DIRECTORY ∠ HOME ABOUT ∠ LEGAL TECH C France Bans Judge Analytics, 5 Years In Prison For Rule Breakers $ 4th June 2019 % arti!ciallawyer & Litigation Prediction ' 24 Tweets by ​@Artifi Talk about cost savings from @veritoneinc as it transcription + text ana >>> $16.5m cost down $5,000artificiallawyer.co Richard Troma @ArtificialLawya FOLLOW , 12(53 PM Page 1 of 1
37. In a startling intervention that seeks to limit the emerging litigation analytics and prediction sector, the French Government has banned the publication of statistical information about judges’ decisions – with a !ve year prison sentence set as the maximum punishment for anyone who breaks the new law. Owners of legal tech companies focused on litigation analytics are the most likely to su"er from this new measure. The new law, encoded in Article 33 of the Justice Reform Act, is aimed at preventing anyone – but especially legal tech companies focused on litigation prediction and analytics – from publicly revealing the pattern of judges’ behaviour in relation to court decisions. A key passage of the new law states: ‘The identity data of magistrates and members of the judiciary cannot be reused with the purpose or e!ect of evaluating, analysing, comparing or predicting their actual or alleged professional practices evaluating, analysing, comparing or predicting their actual or alleged professional practices.’ * As far as Arti!cial Lawyer understands, this is the very !rst example of such a ban anywhere in the world. Insiders in France told Arti!cial Lawyer that the new law is a direct result of an earlier e"ort to make all case law easily accessible to the general public, which was seen at the time as improving access to justice and a big step forward for transparency in the justice sector. However, judges in France had not reckoned on NLP and machine learning companies taking the public data and using it to model how certain judges behave in relation to particular types of legal matter or argument, or how they compare to other judges. In short, they didn’t like how the pattern of their decisions – now relatively easy to model – were potentially open for all to see. Unlike in the US and the UK, where judges appear to have accepted the fait accompli of legal AI companies analysing their decisions in extreme detail and then creating models as to how they may behave in the future, French judges have decided to stamp it out. Embed
38. A recommended podcast episode... “Against the Rules” by Michael Lewis (May 7, 2019)
39. “60 Apps in 60 Minutes” An appellate version
40. Where I’m coming from: • iPad > Mac desktop > iPhone • From my perspective, the life of an appellate lawyer is mostly about pre-writing. The linear page layout of Word or Pages (Mac) is too fussy for me to rearrange early thoughts and research notes. • I’ve learned that WYSIWYG distracts me during prewriting. I personally like plain text or Markdown. • For an appeal, I may revisit and reorganize notes and thoughts about legal issues in several bursts, spread over 12-18 months to (in one case) 7 years.
41. PDF Expert This is my choice for marking up native PDF files (not scans), such as appellate briefs and reporter’s records of trials. Two big benefits: • I can easily edit files in-place within my cloud file system. • The way this highlights text is almost magical...
42. Ulysses This is a nerdy, quirky “writing” app that I use to organize ideas, quotes from cases, notes on the record, and more. It’s now my pre-writing tool of choice. • Working in plain text (or Markdown) helps me quickly refine the prose of an argument, without the distraction of all the formatting in Word • Being able to physically rearrange and group the “sheets” is in effect an outline • The benefits compound over time, when turning to a reply or oral argument
43. Ulysses sample screenshot from the iPad App Store
44. Ulysses I start off with brainstorming ideas and then make other sheets for research notes, quotes from key cases or statutes, questions that need focus I arrange them into “groups” by topic headings — a visual indication of what needs more focus from me Within each topic group, I can work through different ways to discuss the key cases or frame the argument This becomes my outline/reference as I make the “real” brief in Word or Pages
45. Drafts It’s a place to put some text right now, maybe even before you know what it will be. 
 Dictate it, type, copy-and-paste, whatever. “Is this going to better as an email or SMS?” Write and edit your message in Drafts first, then decide. Once you decide, there are “Actions” to invoke lots of other apps: email, SMS, calendar, notes, task managers, social media Drafts is also a great place to paste text from websites or PDFs, so you can get rid of strange formatting before it reaches Word