COURTS & TECHNOLOGY

In August 1995, Stanford Law School Professor (and now dot com impresario) Joseph Grundfest posted a friend-of-the-court brief for the U.S. Supreme Court on the Web. Grundfest believed it was the first brief on the Web to use hyperlinks to the cited case law. "The entire process of legal argument is ideally suited to hypertext and the Web," Grundfest said in a press release at the time. "Much of the law is based on precedent, and the Web allows these precedents to be made an integral part of a legal document."

Despite awareness of their potential significance to courts since 1995, e-briefs are little used today and confusion has characterized discussion of different approaches. That pattern could change if more courts adopted a rule like that of the U.S. Court of Appeals for the First Circuit requiring a disk to accompany all paper briefs filed, and permitting submission of CD-ROM briefs at the discretion of counsel.

Three sorts of e-briefs have emerged: CD-ROM, briefs on disk, and e-filed briefs.

CD-ROM Briefs

Despite our sense that CD-ROM briefs have been around a long time, there are still only a few examples of the medium.

The purpose of a brief on CD-ROM is give the court a copy of the paper brief which takes up less physical space and is in a format that is easier for judges and their clerks to use. A CD-ROM with 650 megabytes of storage capacity holds 20,000 images or 100,000 word-processed pages. The main advantage is granted by hypertext linking cases, statutes, and cites to the appendix or exhibits in the brief. The final product is an integrated filing that enables the judge or clerk to move easily through the brief and referenced materials with the click of a mouse instead of wading through a huge pile of paper. See, The CD-ROM Brief, by R. Timothy Muth, Milwaukee Bar Association Messenger, July/August 1998.

In 1997, CD-ROM briefs began to win acceptance in the federal courts. In April 1997, an attorney for the Washington, D.C. law firm Foley & Lardner attempted to file a CD-ROM brief with the Federal Circuit. The electronic filing was opposed by the other counsel due to lack of notice and consent, as well as an inability to view the brief. The Court upheld the objection, and did not permit filing of the electronic filing. See Yukiyo, Ltd. v. Watanabe, 111 F.3d 883, 42 USPQ2d 1474 (Fed. Cir. 1997). However, in its Opinion denying the CD-ROM brief, the Court encouraged future submittals, and stated that, "[B]y no means . . . does the court intend to discourage the filing of CD-ROM briefs under appropriate rules and standards." Id. at 887, 42 USPQ2d at 1476.

On July 25, 1997, Charles L. Gholz of Oblon, Spivak, McClelland, Maier and Neustadt, P.C. filed the first hypertext brief on CD-ROM accepted by the U.S. Court of Appeals for the Federal Circuit. For the case of In re Todd A. Berg (Appeal No. 97-1367), Gholz had to first obtain the permission of opposing counsel, per the guidance of the Federal Circuit ruling in Yukiyo.

In 1997, an amicus curiae brief on a CD-ROM was submitted in the Communications Decency Act appeal to the U.S. Court of Appeals, ACLU v. Reno. It remains what a majority of lawyers conjure up when defining an e-brief. There are links from the brief on CD-ROM to trial transcript on the same CD-ROM, or have links to exhibits in video, audio or multimedia, or to Web sites. One commentator described the benefits as follows: "It includes pictures, music, and even short movies -- links to and direct incorporation of actual materials on the Internet that the brief alleges would be barred if the CDA were upheld. The brief uses the examples to demonstrate that the words 'indecent' or 'patently offensive' could chill valuable speech. " Todd H. Flaming, Electronic Filings, Illinois Bar Journal.

On October 7, 1997, the U.S. Court of Appeals for the Second Circuit adopted an Administrative Order in the Matter of Companion Electronic Briefs and Appendices. The order provided that CD-ROM or other e-briefs were both allowed and encouraged…." The order adopted by the U.S. Court of Appeals for the First Circuit in Fall 1999 follows the Second Circuit guidelines in allowing but not requiring counsel to submit CD-ROM briefs.

On January 26, 1998, the intellectual property section of the New York firm of Dickstein, Shapiro, Morin & Oshinsky, filed a CD-ROM brief with the United States Court of Appeals for the Federal Circuit . The case, Renishaw PLC v. Marposs Societa' Per Azioni and Marposs Corporation, no. 98-1007, involved a patent dispute and incorporated hyperlinks and Quicktime movies to animate exhibits.

How are courts addressing the technology in their various rules? Hyperlinks are allowed on CD-ROM briefs filed with the First Circuit under Local Rule 32.1 (g), but the link must remain internal. It is not permitted to link to the Web from the brief. The rule provides as follows: "Hyperlinks shall link only to documents on the same CD-ROM, and not to any other location, including, but not limited to, other CD-ROMs or the Internet." The court's concern may rest on the transitory nature of some Web sites. Counsel can work around this requirement by copying a Web page for an exhibit to the CD-ROM. [The draft version of Local Rule 32 is available at the State Bar site, while the final version is at the First Circuit Court of Appeals Web site].

Recent examples of CD-ROM briefs have demonstrated that courts are eager to have them when the parties can afford it. In the Washington State Supreme Court case of Alcoa v. Aetna Casualty & Surety, the Justices requested an integrated electronic brief on CD-ROM in a particularly complex environmental law appeal. The trial case record was enormous, made even larger with deposition transcripts and exhibits.

The Alcoa brief was produced by a leading company in e-transcript production, realLegal.com (formerly known as PubNetics, Inc.), of Denver, Colorado. RealLegal.com also produced the online transcripts for several high-profile cases, such as the Unabomber trial, Texas tobacco industry liability class action litigation, and Oklahoma City Bombing trial.

Other companies that produce CD-ROM briefs include STHP Technology Services, LLC, of San Diego, California, and Counselpress of New York. Today, almost any multimedia or Web production company can convert a word processing file to Adobe Acrobat PDF and burn it to a CD-ROM. More law firms have CD-ROM production capability in-house. The more challenging work of linking a large trial court record would benefit from an expert consultant.

Briefs on Disk and E-filed Briefs

The simplest form of an e-brief is a word processing document on a disk. The North Dakota Supreme Court requires a brief on disk to accompany all paper briefs. A standard 3.5 inch disk can hold 300 pages of word processed text in its 1.4 megabyte storage capacity, which is more than sufficient for appellate briefs. The North Dakota project began in October 1997 and is done for the purpose of allowing judges to more easily travel with their reading material on a laptop. It became mandatory in March 1999, and North Dakota remains the only state court to have adopted the rule. When a court asks whether its state Bar has the technology to submit briefs on disk, it need only pose the question, do we have similar tools as the attorneys in rural North Dakota? The final rule is on the Web, as is the Pilot Project announcement.

E-filed briefs are usually word processing documents, or those documents converted to Adobe Acrobat PDF format. That is, e-filed briefs submitted today are more like word processing documents on diskettes than they are like CD-ROM briefs. Confusion about the format the term "e-brief" described has hindered analysis of who is using them and the benefits of the technology.

In an informal email poll conducted of appellate court clerks of both technologically advanced and rural courts, all responded that they were not using briefs on disk. In Virginia, Utah and Minnesota, three courts noted for their advanced application of technology, the idea has not been discussed. These states will likely move directly to efiling. In Montana, Wyoming and Maine, three courts that have practitioners in remote areas and limited budgets for technology, only Montana has discussed the possibility of lawyers submitting an electronic version of briefs. Also, the Texas Court of Appeals for the Eighth Circuit, has not considered e-briefs.

These states will likely adopt efiling after the cost of implementation is low. Arguably, the more rural states have more to gain from e-briefs because they will not have efiling to meet the need for e-briefs. An obstacle is that the phrase "e-brief" triggers the notion of an expensive CD-ROM brief, so rural courts can mistakenly respond, "our Bar couldn't afford that," or they believe the e-brief replaces the paper copy, so they worry about the lawyers who still rely on a typewriter.

The simplicity of the format--briefs on disk--camouflages its value. Almost all lawyers use a computer and word processor software to produce documents and so can participate in the program for the cost of a disk, which is about one dollar. Courts have underestimated the benefits of receiving documents on disk. It costs nearly nothing to implement the regime and opens a world of benefits from using electronic documents: the ability to store large numbers of briefs on a laptop makes them portable for traveling judges, font size can be increased and text-to-voice software can both assist tired eyes.

Perhaps because it looks like you don't know how to efile if you do briefs on disk, courts avoid the practice for fear of looking like the dumb kid on the block. Lawyers could ask courts to take briefs on disk, but they are focused on producing advanced briefs on CD-ROM, since that¹s what strikes them as improving the persuasiveness of an argument. This is especially true in a complex case where the cost of the litigation far outpaces the cost of producing the CD-ROM.

Conclusion

Services which support e-briefs include instant hyperlinking from a word processing document into case law databases. For example, Shepards produces a product that will check cites. Another service is the ability to obtain electronic copies of briefs filed by other lawyers. This ability is already widely used by lawyers in jurisidictions with efiling, and is available from some legal support firms, such as Mississippi Lawyer.

The most significant potential benefit of briefs on disk is that it shows free e-filing can thrive in most lower volume trial and appellate courts. Why send the brief on a disk when the lawyer can attach it to email, or upload it at the court's Web page? Briefs on disk could become how courts usher in e-filing through the back door.

Briefs on disk also show lawyers that simple, word processing documents can contain many of the beneficial features found in CD-ROM briefs, such as hyperlinks to case law and multimedia incorporated into the text, with a minimum of expense.

The future for CD-ROM briefs is bright, since lawyers will pay a premium to improve the persuasiveness of written argument. As the Internet continues to gain inroads in the courts, the need for a CD-ROM will likely drop away, and the same features will be implemented in online briefs with links to transcripts and exhibits online.

Advanced e-briefs stand to change the way law is practiced by allowing greater creativity in presentation of written argument: why not include with the written text an audio file of the brief being read word for word? Then a judge would be able to choose to listen to the argument. Attorneys will then figure out that video is better than voice, or lawyers will realize the ultimate improvement in persuasiveness is to have an actor read the text: Gregory Peck as Atticus Finch from To Kill a Mockingbird reading the Fourth Amendment search and seizure case sounds about right, or James Earl Jones entoning on constitutional law.

E-briefs may change the way judges analyze legal precedent by encouraging them to go from the case the attorney initially linked to the cases cited in that case, a sort of deeper foundation of the law, or even encouraging judges to search the Web to check factual assertions. Eventually, judges will possess text to voice translation software that will allow them to choose how to study briefs, by reading or listening. Personalization algorithms will enable judges to choose whose voice pattern to apply. Perhaps the greatest potential change in judicial analysis would come from artificial intelligence software or its cousins, linguistic analysis and data mining programs. With these tools applied to an electronic text, judges could seek to identify subtle patterns in the vocabulary or grammar of the rhetoric. In short, while e-briefs have a significant impact in their current incarnation, their future impact on the law is potentially even greater.

Bradley J. Hillis, M.A., J.D.
April 20, 2000

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Discussion

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