AJEI provided a sophisticated panel of judicial officers to give insight to attendees on “How Judges Read in the E-Filing Era”: Justice Brett Busby from the Texas Supreme Court; Judge Martha C. Warner from the Florida Fourth District Court of Appeal; and Justice Rhonda K. Wood from the Arkansas Supreme Court. Each judge or justice offered his or her own perspective on tips and tricks for managing and utilizing large electronic records on appeal. The input from this panel can be particularly insightful to those of us who are practitioners and must regularly navigate not only digital preparation of written work product, but also be mindful of the reader, and the manner in which judicial officers often electronically review and process appellate documents these days.
Moderator Bradley Kutrow posed questions to the panel to guide the discussion. Panelists were first asked to describe how legal work has changed over time. Justice Busby informed attendees that when he started as an appellate lawyer, everyone used paper briefs and records – which translated into lots of boxes. Indeed, many an appellate attorney is all too familiar with this image of endless paperwork making up the practice of law -- even if one has not been practicing very long. That has been quite the norm for some time, and the legal community has been slow, in some instances, to convert to electronic records and methods.
Justice Busby acknowledged that he often still reads paper, but by the time he became a judge, everything was filed electronically. He noted that electronic records can, of course, be more easily searched, and there has definitely been a transition among judges to reading electronic records and having to make adjustments to new methods for that.
Judge Warner echoed the same, in that when she began practicing law, everything was paper. There used to be only one copy of the record for judges to review. However, records started to become available in electronic form in about 2000. In the beginning, clerks had to scan documents into electronic format, but the process really started to change once records were submitted electronically. Once records were more widely available to judges in electronic format, she felt better prepared for cases because of increased access to electronic copies of the record. In fact, she could download and annotate her own copy of the record. And she now uses Word copies of the bench memos to be able to insert her own notes. The bench memos are also linked to case citations for easy direct access.
Justice Wood noted that she had come from the trial court, which was the first paperless court in Arkansas. Now, courts are mostly electronic.
The panel generally praised the use of multiple monitors, which allows for a side-by-side comparison of briefs. If monitors are put in a vertical orientation, that can allow a whole page to be seen at once, instead of the reader having to scroll through portions of a page. Use of multiple screens also allows for the record, a brief, and case or statutory authorities to be seen at the same time by the reader.
The panel spoke approvingly of bookmarks as a critical tool in reviewing electronic briefs and records on appeal. Bookmarks allow users to go to specific locations within the record, or a brief, and allow the reader to jump back and forth for easy comparison within documents. Justice Busby further referenced his use of cloud applications such as OneDrive, which allows him to work on the same document at the same time as staff members, improving ease of communication.
Justice Wood referenced an article she authored with her law clerk, Brian Johnston, “See How We Read.” They surveyed state supreme court justices by email and detailed in the article their findings regarding the reading habits of state justices. Justice Wood reported that 96 justices responded to the survey pre-COVID. 54% reported that they read paper appellate briefs and nearly 23% read them on desktop computers. 80% of those reading electronic versions reported using multiple screens. 46% of justices reported using Adobe Reader for reviewing PDFs, but various other programs were also reported to be used for that purpose, and over half of justices do not use Adobe software.
74% of respondents said that they read the briefs in order. However, 52 of the 96 responding justices indicated that they read the reply briefs first. One quarter of justices reported reading law clerk bench memos before reading the briefs.
Interestingly, 76% of the responding justices either always or usually conduct independent research regarding relevant case citations other than ones cited in the briefs. Amazingly, 52% of justices always, usually, or sometimes conduct non-legal research, i.e., they “google” matters relating to cases.
Justice Wood acknowledged challenges for the judiciary moving toward an electronic environment. She cautioned that a large record may be daunting and sometimes not legible, whether because documents are not reflected well in copied records or because the record is too large to be reviewable. Although attorneys may feel compelled to make a thorough record, she encouraged attorneys to think about saving money and not creating a gigantic record, or not sending all documents up on appeal. Also, it is important to make sure that any links provided to the court are correct and that any photos or exhibits are presented to the court properly. Courts of appeal are moving toward having links directly to the record, and that is desirable and easier.
The next topic of discussion related to the contents of appellate briefs. Justice Busby advised that briefs should be accurate in citations to the record. Writers should keep in mind that record citations can and will be checked, so they need to be fairly represented and reliable. Persuasiveness is important, and a good introduction acts as a set of signposts or a roadmap for the whole case. Then, those signposts can be carried throughout the brief, including in persuasive, full-sentence headings. Indeed, some justices read the table of contents first.
There should not be too many issues in a single appeal; the focus should be on no more than a few key issues that can be successful. A brief should address the other side’s best arguments, as well as remain professional toward opposing counsel and respectful to prior judges involved in the case.
Justice Warner suggested that white space be included in briefs, as well as bullet points. Photos can also be used in briefs, and may effectively show, for instance, changes over time. Writers can use bold or other visual techniques to make a brief easier to read. Often, graphics, photos, diagrams, or animation can be helpful to justices, and may even be included in opinions.
Justice Wood informed the audience that clerks will prepare cases based on the type it is, such as bookmarking specific portions of the record for the justices. In fact, the clerks can often assist the court in making use of new tools, or innovative techniques.
The moderator next asked a key question to the justices – what about brief length? Justice Warner laughingly responded that they are all too long and repeat too much. She recommended that unnecessary details should not be included, and briefs should get to the point more succinctly. Justice Busby again advised that key issues should be the focus – the ones with the most chance to win, and then briefs can be shorter and focus the court’s attention. He gave hope that if the issues are narrowed and focused, then the court will look more closely at those key issues. Justice Warner echoed the same sentiment. Briefs necessarily must be concise; interlocutory appeals should especially focus on an issue or two and should not get too caught up in the process of the case, or facts and events that do not relate to the main legal issues on appeal.
Finally, the moderator asked what piece of advice the justices would suggest to appellate litigators. Justice Wood advised that attorneys should discuss the desired remedy; briefs should not simply state that a reversal is desired, but whether a new trial is needed, whether a remand should be issued with instructions, whether a new hearing is needed, or other specifics about remedial action the appellant seeks from the court. Justices Warner and Busby wholeheartedly agreed, noting that the desired remedy can even drive the applicable substantive law. In fact, Justice Warner advised attorneys to read their briefs and look at it from the judge’s perspective as the intended audience. Justice Busby reiterated that briefs need to explain what a party wants and why they are entitled to it under the law. Think about what the rule will be that will be stated in the opinion of the court, and what will be the rule that other courts will follow after this case.
The moderator concluded the panel’s discussion with a brief reference to what the justices are currently reading outside their work. Some of the works mentioned – whether intellectual, fluff, or simply genres, were: The Lincoln Highway by Amor Towles; Falling by T.J. Newman; Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, by Erwin Chemerinsky; The Pillars of the Earth series, by Ken Follett; and New York Times science and in-depth articles.