by DeeDee Kato, Senior Director
A change has taken place in our nation’s appellate courts when it comes to how documents are filed and read. Electronic filing or “e-filing” is now required in all federal courts and many state courts. Though there are still dramatic variations between courts on the specifics of e-filing, the concept is widely accepted.
Judges and court staff are increasingly comfortable with the concept of reading and annotating briefs and other filings electronically. Many courts now give tablets to judges. Attorneys have become adept at using computer software to prepare briefs as well.
These changes have laid the foundation for the next evolution: from briefs that are filed electronically but are still functionally like paper briefs (e-filing) to truly electronic briefs that not only are filed electronically but offer functionality that paper briefs lack by being more accessible, portable, storable and searchable (e-briefing).
With this in mind, in 2017, the Council of Appellate Lawyers released a recommendations and options document, designed to help appellate courts improve the functionality and readability of e-briefs. Here’s an excerpt of what they recommend.
File formatting for e-briefs
The format of an e-brief significantly impacts how readers see it, says the Council. It also determines the extent, if any, that a reader is able to modify the brief’s appearance, copy its text, and make annotations.
File all documents informat, to be designated as the official court record
The official court record should be in a fixed format. Among fixed format options, they think that PDF is “the most common, is easy to generate, and has good annotation options for courts that do not purchase annotation software.”
Convert to PDF rather than scan
Convertedare greatly superior to scanned PDFs. The Council finds that converted PDFs are more legible, fully text searchable, and allow retention of bookmarks and hyperlink.
Requiring converted PDFs (instead of scanned PDFs) is not burdensome on litigants, says the Council. They feel that once litigants understand the requirement exists, it’s easy to convert a word processing document to PDF.
Scan appendices to PDF with text searchability or compile using converted PDFs
Modern OCR is typically fairly reliable when run on high quality scans. However, text searchability may be very poor if a document has been copied multiple times, contains handwriting, or otherwise is difficult for the OCR software to “read” accurately. Accordingly, it is worthwhile to train and periodically remind judges and court staff of the limitations of scanned PDFs.
File the appendix with the brief as a single PDF
Filing the brief and appendix together as a single PDF facilitates the use of bookmarks and internal hyperlinks to provide automated links between citations in the brief and key record materials.
Provide a reasonable time period for filers to correct formatting deficiencies
Rejecting the filing outright is harsh and arguably unfair if the rejection notice is not immediate and does not give the filer time to refile before the due date, the Council expressed.
They suggest that the better practice is to issue a deficiency notice that specifies the deficiency and provides a reasonable period, such as 3, 5, or 7 days, to refile to correct it.
There’s little doubt that in the coming years, we’ll see a continued move by appellate courts and others toward e-briefing, powered by PDF.