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January 16, 2014 Articles

The Effects of Recent Technology Developments on Appellate Practice

This ain't your father's courtroom.

By Jason Patrick Kairalla and Justin S. Wales

Developments in technology have significantly impacted all phases of litigation. The following is a discussion of some important technological developments and their impact on appellate advocates’ practice.

Technology in the Trial Court
For appellate practitioners, it is important to understand and appreciate how technology has changed trial-court proceedings. From case inception, new technologies, including computer software and advanced online-research tools, assist litigators with fact investigation, case analysis and assessment, budgeting, and document management. In minutes, and from just about anywhere, litigators can access stockpiles of information about parties, attorneys, judges, experts, fact witnesses, and jurors. They can analyze and organize key documents, formulate strategies, generate case plans, and prepare cost estimates.

There is also nearly instant, Internet-based access to case law, court dockets, electronic versions of trial-court documents, appellate briefs, annotated statutes, rules, and regulations, as well as law journals, legal encyclopedias, and other secondary source materials. Advanced search tools allow attorneys to simultaneously locate supporting authority in multiple tribunals, across different jurisdictions, around the globe. Moreover, through citation-reference databases, these online authorities are linked to one another, and legal writers have, at their fingertips, access to thousands of briefs via virtual brief and form banks. Additionally, document-management databases, paperless office protocols, extranets, and other shared online workspaces, as well as electronic task- and project-management tools allow lawyers to work collaboratively across offices and law firms, and while on the go.

Technology has particularly impacted how attorneys conduct discovery. Rare are the occasions today when discovery involves primarily hard-copy, paper documents. Traditional discovery has given way to “e-discovery,” where gigabytes of electronic files (emails, word-processing files, spreadsheets, PDFs, and others) must be identified, gathered, processed, culled, and made available for review on a computer or web-based review tool. Once loaded into these tools, documents are reviewed and coded based on claims of privilege, determinations of relevancy, and their relation to case issues. Some of this reviewing is done by computer programs without human intervention, using methods known as “predictive coding.” See generally Nicholas Barry, “Man Versus Machine Review: The Showdown Between Hordes of Discovery Lawyers and a Computer-Utilizing Predictive-Coding Technology,” 15 Vand. J. Ent. & Tech. L. 343 (2013). These e-discovery tools can also assist in the preparation of document-production sets and privilege logs.

Technology has also changed the way attorneys conduct depositions. Using web-based videoconferencing and real-time court reporting, attorneys can now monitor and even participate in depositions remotely. Deposition video and audio can be synchronized with the transcript to create a powerful tool for use at dispositive-motion hearings and trial.

Courtroom technology is also becoming more prevalent. As with depositions, real-time reporting is available in court, where the judge, attorneys in the courtroom, and even people outside the courtroom (including attorneys, clients, and consultants) can follow along with the rough transcript of the proceedings. In addition, many courtrooms are equipped with television monitors, overhead projectors, wireless Internet access, and computer inputs. This allows for digital trial exhibits, playback of videotaped deposition testimony, and the use of demonstrative slide-show presentations. Some courts have even adopted procedures that allow for the use of cameras in the courtroom to memorialize trial-court proceedings. See Bernadette Mary Donovan, “Deference in a Digital Age: The Video Record and Appellate Review,” 96 Va. L. Rev. 643 (May 2010) (discussing the impact of cameras in the courtroom on appellate review).

Technology in the Appellate Court
While the changes to appellate practice from technology may not be as profound as ones at the trial-court level, they are still significant. New technology affects how practitioners prepare for, conduct, and manage their appeals. On the whole, these advancements are improving the productivity and efficiency of appellate advocates, while reducing the costs traditionally associated with the appellate process.

The following is a brief examination of how various steps in the appellate process are improved with the assistance of technology. It draws from the authors’ own experiences and from interviews of appellate practitioners and judges, including Kannon K. Shanmugam (November 18, 2013) and the Honorable Angel A. Cortiñas (November 13, 2013). Mr. Shanmugam is the head of Supreme Court and Appellate Litigation Practice at Williams & Connolly LLP, in Washington, D.C. Judge Cortiñas, currently a shareholder in the Miami office of Gunster, Yoakley & Stewart, P.A., served for over eight years (2006–13) on Florida’s Third District Court of Appeal.

Preparation for the Appeal
One important task of the appellate practitioner is becoming familiar with the record of proceedings below. Traditionally, this involved either full participation in the lower-court proceedings or an after-the-fact review of the cold record—including final trial transcripts, admitted exhibits, and court pleadings. Online access to case documents, advanced communication tools, and the availability of real-time court reporting enable appellate attorneys to provide remote litigation support to trial attorneys. With these new technologies, appellate practitioners can keep up with trial-court proceedings and provide advice and assistance to trial counsel without the time and expense of being full-time at trial. In addition to allowing for appellate assistance at trial at a fraction of the cost, these processes may cut down on the time the appellate attorney needs to review and become familiar with the trial-court record.

The proliferation of digitalized documents, including online court dockets, is also leading to increased efficiency and decreased appellate costs. (Shanmugam interview.) With electronic case files, trial-court clerks can very quickly prepare the record on appeal, providing earlier access to the record and more time for analysis. (Cortiñas interview.) Electronic trial-court records reduce or eliminate the time and expense of transporting and copying for review the dozens of boxes containing the record on appeal. Additionally, because optical character recognition  technology now allows nearly every document, whether digitally created or scanned, to be word-searchable, the time needed to isolate and locate particular documents is greatly reduced.

The Cost of Doing Research
In the twenty-first century, online research has become ubiquitous to legal practice. The availability of fee-based research providers, such as Westlaw and Lexis Nexis, has dramatically cut the time spent researching issues of law during the appeal but has been traditionally reserved to those parties willing to pay the relatively high costs of these providers. Recently, alternative research outlets, such as Google Scholar, FindLaw, and Bloomberg Law, are allowing attorneys and parties to perform research at little to no cost. While these services are still in a relative nascent state, lacking in a number of essential features, the gap between these offerings and their higher-priced competitors is closing. The increased access to information makes for a more even playing field and allows parties with limited resources, and their attorneys, to access the same universe of information as their opponents.

Preparation of clear and persuasive briefs is of paramount importance to appellate advocates. Advancements in word-processing software have drastically reduced the time and costs associated with appellate briefing. Among other things, sophisticated word-processing programs can automatically create tables and indexes and globally manage text styles to ensure that the document’s appearance is uniform and in compliance with type settings and other technical requirements.

Advances in technology, and the embrace of these technologies by appellate courts, have increased the speed with which practitioners can get their briefs into the hands of judges. Federal courts, and an ever-increasing number of state appellate courts, now accept electronically filed documents. Judge Cortiñas believes that electronic court records and the e-filing requirements translate into briefs reaching the hands of the judges faster, allowing judges to conduct analysis and render opinions sooner and more efficiently. These technologies also allow courts to make orders and decisions available to attorneys as soon as they are entered. (Cortiñas interview.)

Technology is also changing the way practitioners write and format their appellate briefs. Traditionally, briefs have been written to read linearly, organized into discrete sections and subsections, with exhibits and supporting material included at the end or in a separate appendix. Modern word-processing tools, and the availability of electronic court records and authority, now provide practitioners with the opportunity to submit “dynamic” or “enhanced” briefs, which not only incorporate exhibits into the brief’s narrative but also allow supporting material to be more accessible to the courts. (Cortiñas interview.) According to Mr. Shanmugam, the improvements to word-processing capabilities, along with the advances in research tools, provide the most significant impact on appellate practice. These improvements make preparing and revising much easier and allow for better and more comprehensive briefs. (Shanmugam interview.)

So-called “enhanced” or “dynamic” briefs can include videos, pictures, and animated demonstrations embedded within the briefs’ text. Whether submitted via electronic filing, on a compact disc, or on a flash drive, these briefs can link to a digital copy of the appellate record, as well as the supporting authority. With minimal training or technical assistance, attorneys can embed within their argument hyperlinks that provide instant access to the exact line of research or the part of the record referenced by the brief. Judge Cortiñas commented that, if used correctly, these enhanced briefs can have a powerful impact on judges and save them valuable time. Sophisticated practitioners, able to use these and other innovative techniques, have the ability to better capture a judge’s attention while still operating within the bounds of the appellate rules. (Cortiñas interview.)

Oral Argument
Technology is also improving oral advocacy. Over the last decade, for instance, appellate courts, including Florida’s Third District Court of Appeal, have equipped their courthouses with equipment such as high-definition video cameras and monitors, and have begun to allow the live streaming and archiving of oral arguments on the Internet. (Cortiñas interview.) Instant, web-based access to oral arguments means that those wishing to observe proceedings—including clients, non-arguing cocounsel, the public, and the press—do not need to be physically present at the courthouse. (Cortiñas interview.) Use of this technology also serves to reduce costs traditionally associated with conducting oral argument. For example, in Florida, advocates can appear remotely from special locations in Key West and Tallahassee, before the judges presiding in the Third District’s Miami courthouse. (Cortiñas interview.) This allows for participation in oral argument without the expense or time involved in travel to the venue.

In sum, technological enhancements are improving appellate practice and creating new opportunities for advocates. As Judge Cortiñas noted, many appellate courts and judges are intrigued by new technologies and how they may be used to make courts more accessible and more effective.

Keywords: litigation, appellate practice, online research, predictive coding, e-discovery, videoconferencing

Jason Patrick Kairalla is a shareholder and Justin S. Wales is an associate with Carlton Fields Jorden Burt, P.A., in Miami, Florida.

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