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September 01, 2013
Sua Sponte A Judge Comments
A judge offers his thoughts on whether or not electronic documents really help your case.
Hon. Berle M. Schiller
Motions come in, accompanied by briefs. Responses come in. Replies come in. Occasionally, surreplies come in. Opinions go out. The cycle continues. Even in this age of electronic filing, the paper mountain that Frank Sommers and Rob Bunzel alluded to can be a virtually unscalable Everest to a busy judge. Add to that the hundreds, sometimes thousands, of pages of exhibits included with the briefs and busy judges may simply turn off their computers. Too often, lawyers include with their briefs every paper exchanged in discovery and every utterance captured during depositions.
The briefs most helpful to me and my clerks in climbing the paper mountain include concise and well-reasoned legal arguments and guide me through the facts in a well-organized and thoughtful manner. Few things are more distracting than constantly flipping from a brief to portions of the record. So I would welcome any technique that will make it easier for me to parse the record.
Papers that come alive are an exciting proposition for a judge, but lawyers who wish to employ the tactics laid out by Sommers and Bunzel would be wise to heed a few pointers. First, make sure the judge is willing to review the product you submit. I think briefs with hyperlinks are a great idea. Some judges might disagree or believe that it creates an unfair advantage if only one side creates papers that come alive. Furthermore, as Sommers and Bunzel noted, this is largely uncharted territory not covered by local rules. There is no sense in delivering a package to chambers that will never be unwrapped.
Second, please exercise discretion when adding links to a brief. It is more useful to the court that lawyers embed a few links to key documents and testimony rather than bog down the brief in a sea of blue, underlined text. Over-linking strikes me as the electronic equivalent of providing the court with every piece of discovery collected during the litigation. Remember, a living brief is not an opportunity to evade page limits. A lawyer who over-links also runs the risk of having the key document overlooked amid the slew of exhibits already highlighted. Select a few key exhibits that you want to highlight. For example, if you have the plaintiff making a key concession in a videotaped deposition, allowing the decision maker to witness the plaintiff make your case for you would be very persuasive.
Finally, make sure to include, in a cover letter, some basic direction about how to use the living brief you are submitting to the court. The whole point of this exercise is to make it easier for the judge to get to the important material. If he or she needs a manual to get there, the judge may skip the living brief and just start reading a paper copy, which of course requires no additional instruction.
Assuming the judge in your case is on board with a living brief, what is the best method to use when creating your living brief? Generally, I believe that lawyers would be wise to embed links in the text of the brief. This method helps maintain the flow of the argument and leaves to the reader control over when to examine the exhibit. And, of course, embedded links have the advantage of taking up less space than including a picture of the exhibit on the page of the brief. Circumstances exist, however, when it makes sense to include the actual exhibit in the brief. Trademark and patent cases, for example, may require judges to examine drawings and trademarks to determine the likelihood of confusion and possible infringement. Embedding visuals directly into the brief makes sense here. Similarly, damage calculations and petitions for attorney fees are situations in which it may be best to show your work directly in the body of the brief.
And let us not overlook the law. If you have controlling precedent on your side, consider linking a case directly from your brief. You should even consider highlighting a particularly important legal quote or analysis that succinctly makes the point you are trying to convey to the court.
The living brief can ease a judge’s burden and help your arguments. A living brief also can keep your opponent honest. If you believe your adversary is playing fast and loose with the record, you could link to the specific offending page in your adversary’s brief as well as the statement or piece of evidence that proves your point. You could undercut your opponent’s argument, show the judge the evidence that supports your position, and highlight the legal proposition that helps you win the motion. The lawyer who can accomplish this all on the same page and without the need for constant flipping will have a persuasive brief.
Used properly, a brief with some well-placed links presents a golden opportunity to place your best evidence before the judge and simultaneously ease the burden on the reader. This judge says go forth and create living briefs. Be careful, though, not to create a Frankenstein.