GPSolo Magazine - June 2004

e-briefs and e-filing are e-z

By David L. Masters

As more and more court systems begin to accept electronic filings, some lawyers feel as if they’re at the top of a slippery slope, with mandatory e-filings waiting at the bottom. Others see e-filing as an opportunity to provide courts and clients with dynamic documents that facilitate the presentation and communication of complex fact patterns and legal arguments. The move to e-filings and e-briefs, although now in its infancy, may unfold as a paradigm shift equivalent to court rules that required all filings to be typewritten or printed.

Done skillfully, e-filing is an effective way for lawyers to present their clients’ positions. Proper linking to exhibits and cited cases makes it easier for judges to understand the case, and if your presentation of the facts and authorities is more easily understood, your argument will be more persuasive. This article will help those attorneys who see themselves at the edge of that slippery slope become more comfortable with e-filing and accept it as a useful liti-gation tool. Lawyers who already feel comfortable with e-filing can use this information to become even more adept.

E-Filing Basics

Electronic court filing gives attorneys and law firm staff more direct control over filing and service and eliminates uncertainty from the process. Most systems enable filing with the court via a secure online connection and service on all parties within mere minutes. The system gives the filing party an instant receipt and proof of service and sends noticeto the party being served within seconds of the court’s acceptance of the filing. The LexisNexis File & Serve system has been adopted by courts in numerous states. (See sidebar below.)

Federal courts gradually are adopting a new electronic case management and electronic case files system (CM/ECF) that provides federal courts enhanced and updated docket management and allows them to maintain case documents in electronic form. This program has been in use in the bankruptcy courts since early 2001; district court implementation began in 2002; and appellate court implementation is targeted to begin in late 2004. Some courts allow case documents (pleadings, motions, petitions) to be filed with the court over the Internet.

How you file a document electronically will depend on the system adopted by the court. In general terms, submitting documents involves accessing the service employed by the court using your standard Internet service provider (Mozilla, Opera, Internet Explorer, Netscape, etc.). The first time you use the service, you must register with a user name and password for accessing the system. Once the system is accessed, select the appropriate court, identify the document to be filed, upload the document to the system, and authorize the filing, all by following a series of onscreen instructions.

Even if courts where you practice do not currently use electronic filing, you still may want to provide the court with digital files for complex briefs or trial exhibits. Indeed, most court rules do not currently provide for filing electronic briefs. Many courts, however, have expressed an interest in receiving electronic briefs and are developing internal and public rules for this.

Creating Better E-Documents

This next part of this article describes how to go beyond the electronic filing of documents and reveals how to create digital or electronic documents using links to aid the judge’s understanding of a case.

The PDF standard.

Because many courts and government agencies have adopted the PDF (portable document format) as the standard file format, the process detailed here relies on Adobe Acrobat for assembling the electronic brief. Acrobat also lets you convert paper documents to electronic copies that can be attached or linked to the brief. Because almost all documents generated in the typical law firm today are created electronically, the discussion starts with what to do once you have a final copy of the brief.

Print a review copy.

Before converting the final word processing file to PDF, print a copy of the file, review the paper version, and mark all references that will be linked to source materials (cases, statutes, transcripts, record on appeal, etc.). Decide whether the links will appear in color so they’re easily spotted.

Print to PDF.

To “print” (i.e., convert) the final word processing file of the brief to PDF, use a print command within the native application that allows for printer selection ( WordPerfect: under the File menu select Print, or simply type Ctrl+P or F5; Word: under the File menu select Print, or type Ctrl+P), and then choose a print driver that will print to PDF. Installing Acrobat 6.0 adds a new virtual printer, Adobe PDF (Acrobat 4.0 and 5.0 installed two virtual printers to the system: Acrobat PDFWriter and Acrobat Distiller). These “printers” will print in PDF form any file on the computer that can be printed to the regular printer.

Scanning attachments.

Some documents associated with the brief may exist only on paper and will need to be scanned to PDF. To create a PDF document by scanning, open Acrobat, and from the File menu select Create PDF and then select From Scanner ( Acrobat 6.0: type Alt+F then F then N; Acrobat 4.0 and 5.0: type Alt+F then M then N). Once the document has finished scanning, you have the option to add more pages or save what you have to a file. When “Done” appears, the scanned image can be saved as a file in the appropriate folder.

Documents read best when scanned at a resolution of 300 dots per inch (dpi), which comes close to photocopy quality when printed. In order to minimize the size of scanned image files (this conserves storage space and speeds electronic delivery), select scanner output settings for Black and White (sometimes listed as Text or Line Drawing). Select Color or Gray Scale output settings only when necessary (these settings produce substantially larger files).

Creating and organizing attachments.

Whenever possible, print source materials (cases, statutes, trial transcripts) to PDF from the existing digital source, for example, case law retrieved from an online source or CD-ROM. Use efficient names for these materials, such as a short form of the citation (e.g., Whinnery 895P2d537), which will mean the cases will arrange themselves in alphabetical order in your folders, making them easier to locate when building the links. Avoid using periods, commas, or other punctuation marks when naming these files. Whenever possible, obtain digital copies of transcripts from the court reporter. Using a transcript management application such as RealLegal Binder, Summation, LiveNote, or TextMap, “print” the transcript to PDF so that it will be in the same format as all the other electronic documents.

Planning and organization.

You must decide whether the reference materials will be attached to the original document (by inserting pages into a single PDF document) or associated as separate PDF files. Short pieces such as motions lend themselves to including all the reference materials; longer, more complex documents such as appellate briefs should link to external documents. Either method works, and courts have not promulgated rules addressing this issue. The procedures described below address both all-in-one documents (simple electronic briefs) and documents with links to external reference materials (complex electronic briefs).

Courts Using LexisNexis File & Serve

As of January 2004, the following courts were using the LexisNexis File & Serve system: Arizona (Maricopa County Superior Court); California (superior courts for San Diego County, San Francisco County, and Shasta County); Colorado (district courts statewide, water courts statewide, and Denver County Probate Court); Delaware (court of chancery and superior courts statewide); District of Columbia (superior court and contract appeals board); Georgia (Fulton County State and Fulton County Superior); Maryland (Baltimore City Circuit Court); Ohio (courts of common pleas for Butler County, Cuyahoga County, and Lucas County); Texas (district courts for Bexar County, El Paso County, Jefferson County, and Montgomery County); and Washington (Chelan County Superior Court).

Complex electronic briefs.

First, create a folder for the project (e.g., CD Smith Brief; using this convention, rather than Smith Brief CD, places all the CD projects together when viewed through Windows Explorer). Within the project folder, create subfolders for briefs and source materials:

• Briefs (C:\CD Smith Brief\Briefs)

• Cases (C:\CD Smith Brief\Cases)

• Statutes (C:\CD Smith Brief\Statutes)

• Regulations (C:\CD Smith Brief\Regulations)

• Court Rules (C:\CD Smith Brief\CourtRules)

• Transcripts (C:\CD Smith Brief\Transcripts)

• Record (C:\CD Smith Brief\Record)

Create and save an empty set of folders to serve as a template for subsequent matters; this gives you a standard taxonomy for all electronic briefs prepared in the future.

Next, retrieve the cases and statutes from your online or CD-ROM sources, print them to PDF, and save them to the appropriate folders. For appellate briefs, scan the record to PDF (this way, the electronic version of the record will retain the numbering supplied by the trial court appellate clerk). After scanning the record, run the file through an optical character recognition (OCR)application such as OmniPagePro or the Paper Capture feature in Acrobat. Processing the file through OCR will produce a searchable image-on-text PDF file.

Simple electronic briefs.

Once the brief is in PDF form, open it with Acrobat, go to the end of the document, and insert the first item that will be linked: From the Acrobat menu select Document, then Pages, then Insert (or type Ctrl+Shift+i), highlight the appropriate file, double-click, then select Okay. Acrobat inserts the linked pages, but the display remains at what was formerly the last page of the document. Advance one page, which will be the first page of the document just inserted, and note the page number where the appended material begins. After all pages are inserted, go to the end of the document (now the last page of the most recently inserted file), and repeat the process until all source materials have been incorporated into the brief. Each time pages are inserted, be sure to go to the first page of the newly inserted material and note the page number. (You’ll need to know those page numbers later when you create links.)

Be sure to group the appended documents by type (all cases, all transcripts, etc.); within each type, insert the file in order of its appearance in the pleading—just as you would do with paper documents.

Creating links.

Now it’s time to build the links. With the final document open in Acrobat, find the first reference in the brief that will be linked to a source. Click on the Link tool (it looks like links of chain and appears only on the Advanced Editing toolbar), so be sure you have that opened. Drag a box around the citation (full case name, reference to record, reference toexhibit, etc.), choose “Open a page in this document” or “Open a file,” and then set the link destination.

To create a link that goes to another document (another PDF file), select “Open a file” in the Create Link window, which will display a dialog box that lets you select and specify a destination for the file. After completing the link and with the Link tool still active, double-click on the link; click the Actions tab, and select “Go to a page in another document” from the drop-down list, click Add the Browse to locate the destination file, select the destination file, specify the page number the link should open to, and select Close.

Inserting source materials when all are located in the original document is easier. Go to the first item to be linked; select the Link tool, drag a box around the citation or reference, and choose “Open a page in this document.” Insert the page number for the link destination and click Okay. (This is why you made note of the page number each time you inserted a new document into the brief.)

After completing the first link, with the Link tool still active, right-click on the newly created link and select Properties. In the Properties window select Invisible Rectangle from the Link Type drop-down menu, then select Close. Right-click again on the newly created link and select Use Current Appearance as New Default. Continue through the brief; the links will have the same appearance properties as the first link you created.

When all the references in the brief have been linked to the sources, the electronic brief is ready for filing with the court. Depending on the size of the final product, you may file the brief online or copy it (and all linked materials) to a disk for delivery to the court. In either case, you will have provided the court with a dynamic document that will enhance the decision-making process.

David L. Masters practices law in Montrose, Colorado, and can be reached atdlm@masterslawfirm.com

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