E-Briefs in the Era of E-Filing

A joint presentation given at the State Bar annual meeting in Houston (June 2012)

Transcript

1. Appellate Briefs in the Era of E-Filing State Bar “Adaptable Lawyer” Track 2012 Annual Meeting (Houston, TX) Don Cruse Todd Smith
2. E-Filing
3. • E-Filing: Electronic submission of documents to appellate courts for decision and action • Texas Appeals Management and E-Filing System (TAMES): PACER-like online document submission and access • E-Briefs: Documents prepared for e-filing in compliance with court rules Changes to Appellate Practice
4. Appellate E-Filing • Not “e-copies”—electronic copies of briefs tendered for court’s convenience • True e-filing is sufficient to satisfy deadlines and join issues, even if follow-up paper copies are required
5. Why File Electronically? • Many courts now require it • To simplify and streamline your practice • To make the job of deciding your appeal easier for the court • Adds some flexibility—a document is timely if filed by 11:59 p.m. on date due
6. Where Can You E-File? • 5th Circuit: Mandatory since March 2010 • SCOTX: Mandatory since September 2011 • Among 14 intermediate appellate courts, mandatory in 1st, 3rd, 7th, and 14th • Currently permissive in 2nd, 4th, 5th, 6th, 9th, 11th & 13th • 8th, 10th & 12th will permit soon
7. 5th Circuit E-Filing Rules • 5th Cir. R. 25.2 • But separate ECF Filing Standards are key • Details at 5th Circuit CM/ ECF page: http:// www.ca5.uscourts.gov/cmecf/
8. Texas State E-Filing Rules • TRAPs 9.2 & 9.3 • SCOTX has adopted e-filing rules and approved a template for local CA rules • Check court websites for links to local rules as adopted • All accessible through http:// www.supreme.courts.state.tx.us/
9. How to E-File: 5th Circuit • 5th Circuit CM/ECF system is similar to what district and bankruptcy courts use • Registration and online training required
10. How to E-File: Texas State Courts • Submit through a third-party electronic-filing service provider • EFSPs offer training for their own systems • Can pay fees through EFSP accounts
11. TAMES • More documents online: Fourteenth Court site now publishes all motions, briefs, orders • But might be at a cost: Courts are debating asking for a PACER-type fee for each viewing • This technology would allow searching all appellate briefs through one portal • Electronic notices could replace U.S. mail
12. TAMES
13. TAMES
14. E-Briefs
15. “Paper or Plastic?”
16. 10-0182.pfr.pdf Now, the PDF file is becoming the “real” brief
17. Knowing it’s filed in that format doesn’t tell you how the judges will actually see that file. But “PDF” is just a file format.
18. Staff likely has more basic LCD screen Some judges have a dual-monitor setup But they might be using a laptop More judges are acquiring iPads Emergency motions on smartphones Can’t presume what hardware the judges and staff are using.
19. Can’t presume what software the judges and staff are using. Acrobat iOS apps for PDFs Other PDF Tools Acrobat Pro Desktop web browser (IE) Mobile web browser
20. 2011 Survey: On what screens were court personnel reading electronic briefs? 2% 10% 17% 71% Big desktop Small desktop Laptop Tablet/iPad Smartphone Kindle/e-reader At the Office 5% 7% 11% 50% 13% 14% At Home / Traveling
22. Searchable
23. Native PDF vs. Scanned If in doubt, zoom in and take a look. Taken from two PDF briefs filed in the same case.
24. Bookmarks
25. Appendix C Appendix A Appendix B The Court order encourages using “bookmarks” to help with internal navigation. Think about them like tabs, for your table of contents. Bookmarks
26. 2011 survey: If you have seen the bookmark feature, did it make the briefs easier to use? 9% 91% Among All Court Staff Yes No 100% ...Limited to Justices Graph shows those who answered “Yes” or “No” rather than “Unsure”.
27. Hyperlinks
28. Fifth Circuit Rules Texas E-Briefing Rules •e-brief PDFs can include exhibits, cases, etc. • require that certain appendix items be included within certain briefs • are fairly lax about allowing hyperlinks out to other resources • e-filed briefs cannot include these items • these required items are included in a separate “appendix” •coming “PDF/A” standard will break external hyperlinks
29. A “full” e-brief with hyperlinks to everything. Selecting key items to highlight with a hyperlink. How far should you go?
30. “I would hyperlink everything” “You never know what I’m going to think is important” Justice Wainwright on what to link 0:49 Limited by cost or making filing cumbersome
31. Some links can signal importance The key case, “that tells me something” Key part of the record or diagram Justice Johnson on hyperlinks as emphasis 0:37
32. What to link?
33. Reporter’s Record Clerk’s Record (Almost) Universally Loved 10:1 positive-feedback ratio Government Sites (legislative Generally Well-Received PDFs of Key Cases or Statutes Roughly 3:1 positive-feedback ratio
34. Slightly Less Positive Roughly 2:1 positive-feedback ratio (but just as many were still uncertain) Legal treatises or law reviews Online pleadings in other cases Free legal research sites Equally Divided Views Nearly 1:1 feedback ratio Unpublished slip Paid research services
35. Proceed With Caution Roughly 2:1 negative-feedback ratio General websites (for background) Audio/Video Clips Evenly divided feedback, but a majority still had no view Use good judgment about what will really help your case