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Make your case with a digital brief: an electronic brief can provide a clear, time-saving map of your case - a more user-friendly option than an old-fashioned paper copy. Here's how to make the most of this technology.

As digital technology has become more common and less expensive, the use of digital briefs is growing. Unlike paper briefs, they can include any type of exhibit that can be saved on a CD-ROM, such as photographs, audio files, or clips from videotaped depositions--all in one neat package. Because a digital brief can encompass all these separate elements, it may be more persuasive than its paper-bound counterpart.

The technology that makes digital briefs especially useful is the hyperlink. One of the most basic elements of the Internet, hyperlinks allow the viewer to move easily from one site to another, or from one part of an electronic document to another. It was only a matter of time before computer-savvy litigators started putting them to use. You can make it easier for judges to review and navigate through your briefs by using hyperlinks to highlight specific pages, quotations, and exhibits.

Hyperlinked briefs are quickly becoming popular in appellate cases, and they offer exciting new prospects for pretrial practice, settlement conferences, mediations, arbitrations, and other aspects of litigation. Making the most of this technology is surprisingly simple and affordable.

In their most basic form, electronic briefs are digital versions of pleadings that have been converted from word processing programs to portable document format (PDF), readable with Adobe Reader, which can be downloaded from the Internet for free. Federal courts and many state courts increasingly require a PDF copy of every brief. PDF conversion is easy and inexpensive. All you need is Adobe Acrobat or another software program that converts certain file types to PDF.

Even simple PDFs offer advantages over paper briefs, beginning with size. A single CD-ROM can hold several thousand PDF pages, making it much easier for a judge to carry your brief, attached exhibits, and relevant cases from place to place. A PDF that is converted from a word-processing program also is easily searchable for phrases or citations, unlike paper briefs.

Simple e-briefs can be uploaded over the Internet; federal courts allow electronic filing through the PACER system. But digital briefs with hyperlinks should be burned onto a CD-ROM instead, because it is difficult to keep the hyperlinks intact when transmitting them over the Internet. Most courts will accept a CD-ROM in addition to the hard copy of the brief.

Digital briefs with hyperlinks are somewhat more complicated--and much more useful--than those without them. A judge can simply click on a hyperlink to review the supporting exhibits and case law. A hyperlink can make the relevant information more accessible than a simple reference to an attached exhibit or a cited case, because it can open a document at a specific page and even highlight specific sections of that page.

If your brief includes a video segment, you can include only the portion of a videotaped deposition that you cite, so the judge does not have to fast-forward through it to find the important part.

Digital briefs can make it more convenient for the judge to get to the information that matters in your case. Most courts that have received hyperlinked briefs have been enthusiastic about using them. For example, the federal Tax Court noted,</p> <pre> The record, which includes a trial transcript of approximately 3,500 pages memorializing the testimony of 21 fact witnesses and 7 expert witnesses, consists of 43 "red" files and more than 10,000 pages of exhibits.... The

written briefs, inclusive of their proposed findings of fact and objections to the other party's proposed findings of fact, totaled

more than 3,300 pages. The copies of the briefs on CD-ROM were very helpful to the court. (1) </pre> <p>A CD-ROM clearly is more portable than a huge stack of paper. In an interview on the popular Web log How Appealing, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals explained a significant advantage of electronic briefs:</p>

<pre> Of our 11 active judges, only 6 have principal chambers in Chicago.... Moreover, even the judges with principal chambers in Chicago often prepare elsewhere--at home, in Michigan, in Paris, or in my case in Alaska, where I escape to relax and work.

Counsel must file briefs and appendices electronically, see Circuit Rule 31 (e), so that judges can read wherever they find themselves.

Electrons are much easier to tote around than those heavy protons and neutrons that constitute paper! (2) </pre> <p>Kansas judge Steve Leben remarked, "The next time you're sitting in your chambers, minding your own business, when a large stack of motion papers arrives, just hope it's accompanied by an electronic version." (3)

An often overlooked benefit of electronic briefs is their impact on opposing counsel. Hyperlinked briefs are still relatively rare, particularly in pretrial practice, and even attorneys who have seen them before may think they are extremely expensive and complicated. A nice, neat CD-ROM, especially if it includes video clips or animated graphics, carries the message that you are more than ready for trial. The cumulative effect of several such CDs can give you a psychological advantage.

Misconceptions

Many attorneys like the idea of hyperlinked briefs but are reluctant to use them based on several misconceptions.

The most common misunderstanding is that you must file digital briefs by the deadline for paper briefs. Courts that require electronic filing do require attorneys to file simple PDF versions by the deadline, but hyperlinked briefs usually can be filed one week or longer after the paper copy.

Few courts have rules specifically addressing hyperlinked briefs, but most courts accept them in a second filing at any reasonable time after the paper briefs. Even courts that have rules specifically governing hyperlinked briefs, such as the First Circuit and the Federal Circuit Court of Appeals, set the deadline for those briefs at least a week after the hard-copy deadline.

Another misconception is that electronic briefs are prohibitively expensive--and not long ago they were. One case described a simple appellate brief on CD-ROM that cost $16,000. (4) But the technology for creating e-briefs has improved rapidly, and the cost has decreased. Some companies charge less than $100 per page to digitize and add hyperlinks to appellate briefs.

Because PDF technology is relatively simple, some firms create their hyperlinked briefs in-house. Adding hyperlinks requires time, but no special technical skills, using Adobe Acrobat. A popular legal Web log, PDF for Lawyers, has posted instructions for converting briefs for electronic filing. (5) David Masters also has provided excellent instructions in his book, The Lawyer's Guide to Adobe Acrobat. (6)

Digitizing video and creating clips requires more complicated hardware and editing software that few law firms possess. Numerous vendors offer this service and the market is competitive, so you can find reasonable prices.

When to go digital

Even the most ardent advocates of electronic briefs will agree that not every motion needs a digital counterpart. I recommend and use hyperlinked briefs in three main situations.

Appellate briefs. Hyperlinked briefs are most common in appellate practice, and appellate briefs generally are the easiest to digitize, because the record already has been set and the issues narrowed. Federal courts have been at the forefront of the e-filing trend: The Court of Appeals for the Federal Circuit reportedly was the first court in the country to accept a hyperlinked brief. Not surprisingly, that court also has specific rules governing these briefs. Other courts that do not require or encourage e-filing have seen fewer of them.

Hyperlinked briefs are most useful in cases with a voluminous record or in cases that require the court to review specific pages, such as provisions of a contract. They also are useful when a particular piece of evidence, such as a video clip or audiotape, is at issue. But even simple cases can benefit from a hyperlinked brief, because not all the judges on a panel will have ready access to the official record.

In most federal appellate courts, for example, only one judge on a panel has access to the entire record. The other judges have only copies of the record excerpts that attorneys prepare, which may include just portions of a deposition or trial transcript. A hyperlinked brief can include complete transcripts, documents, and other exhibits, allowing all the judges easy access.

Pretrial motions. At the trial level, hyperlinked briefs are useful for complicated motions, such as for summary judgment. Hyperlinks help the judge navigate through a large factual record or legal argument and help you explain the important parts of your case.

For example, I use electronic briefs in most of my motions in limine to exclude expert witnesses. Video clips from the expert's deposition let the judge preview the likely trial testimony, and even if I lose the motion, by the time the trial begins, the judge maybe as irritated with the expert as I am. Video clips allow the judge to see the witness's demeanor and evaluate far more information than a two-dimensional deposition transcript does.

Pretrial motions also provide a good opportunity to include evidence in the record. For example, if an important witness exhibits bizarre behavior during a deposition, the judge may exclude those portions of the video deposition from the trial. By including those video clips in a pretrial motion, however, you can both give the judge a preview of the witness and make that behavior part of the record for appeal.

You can also use video during a deposition and later include it in a brief. For example, if an expert witness is explaining a complicated medical procedure, a simple animated graphic can help clarify the explanation. If you have developed the animation early in the discovery process, you can use it during the expert witness's deposition as a basis for questions. Simply play the video on your laptop and then give the court reporter a CD to include as an exhibit to the transcript. The graphic then becomes part of the record and can be included in any pretrial motion or appellate brief.

As a matter of trial tactics, your animation may become the one that all the witnesses--on both sides--work from. You will lose the element of surprise by revealing your graphic before trial, but you will gain the advantage of defining the terms of the debate.

This technique works equally well with audio clips and other information that might become important evidence. In a case with a budget that warrants it, you can create a three-dimensional movie of an object or a location and use it throughout depositions. QuickTime supports stunning virtual-reality renditions, and it allows you to navigate to a particular view and then save that frame as an exhibit for the deposition transcript. That capability can be useful in cases involving specific objects, such as medical devices or defective products, or specific locations. Once witnesses have authenticated the movie, you can include it in pretrial motions or briefs to acquaint the judge with the major issues of the case.

Audio and video. Hyperlinked briefs are especially helpful when you want the court to see videotape or listen to audio. As Leben wrote, "Videotape excerpts, I can tell you, do make a more vivid impression than the cold transcripts do." (7)

With ordinary paper briefs, the only way to get video before the court is to file the VHS cassettes or DVDs and then hope the judge tracks down the necessary hardware, is willing to search for the section you are citing, and manages to find it. With an electronic brief, the clip is as easy to locate as the transcript itself.

It is important to synchronize the video with the text of the official transcript. Not all courts have sound cards in their computers, so judges without them will not be able to hear the audio in a deposition clip.

Including video in a digital brief is relatively easy but requires planning ahead. Adobe Acrobat hyperlinks require that video and audio be saved in specific formats and will not work with formats from the most common trial presentation software programs, such as Summation and Trial Director. Converting video from these formats to one that Acrobat will accept is possible, but it can be complicated, and the quality is almost always disappointing.

For that reason, I always recommend that attorneys ask for DVD copies of all video depositions. That way, technicians can start with video on a DVD and then easily convert it for either trial presentation or inclusion in a digital brief.

The two most common formats that Acrobat accepts are Windows Media Player and QuickTime. Of those two, I recommend QuickTime because the video quality is better and the files are easier to work with. Both programs support text-video synchronization and both offer free players.

Attorneys familiar with trial presentation software will find video in digital briefs different in several key respects. Instead of showing a synchronized transcript in a separate window next to the video, a digital brief usually displays the text as a caption in the same window. This format has the advantage of excluding irrelevant or inadmissible parts of the transcript, but it does require precise time codes.

QuickTime allows you to include and manipulate numerous text tracks. For example, if the important part of a particular clip is body language or other visual information, turning captions off can minimize distractions. If you cite the same clip elsewhere in the brief to Jake a different point, you can then include the captions. This ability to turn text tracks on and off can be extremely useful with depositions in foreign languages. The QuickTime window can display one track in the foreign language, or another with the English translation, or both at the same time.

Because dealing with three files can be difficult, trial presentation programs that allow you to exclude portions of a deposition do not actually delete those portions but simply tell the program to skip them during playback or export. QuickTime, by contrast, allows you to incorporate everything into a single file. When copying or transferring QuickTime files, you need worry about only one file, and you save space on the CD.

QuickTime also allows you to display better-quality video than most trial presentation software can handle. Because of concerns about compatibility, most trial presentation packages are written for the least complicated, oldest, and therefore lowest-quality video formats. Media Player suffers from the same disadvantage. QuickTime, because it is first and foremost a video program, incorporates technology that produces higher-quality video.

Practical considerations

The technology for hyperlinked briefs is not terribly complicated, but the process is labor-intensive. You can get good results and minimize costs by following a few simple rules.

* Plan ahead. Early planning is important, particularly for video clips. You generally can create hyperlinks in less than a week, but scanning a voluminous record may take more time. Digitizing video and creating clips can take several weeks, especially if you want the video synchronized to the transcript.

* Look for legal knowledge. If you're using a vendor, find one with some level of legal expertise. Many technicians understand the software, but they may not recognize pinpoint cites and rarely will catch a typographical error. Plus, if your vendor does have legal experience, it never hurts to have a knowledgeable person take one last look at your digital brief.

* Ask about bells and whistles. Vendors can add numerous features to hyperlinked briefs, some of which you may not want. Decide ahead of time, for example, whether you want the hyperlinks from a cited case to call up a specific page or just the first page of the case. You also can ask the vendor to highlight a quotation in the case law or the lines of the transcript that you cite. These features always take more time and may cost you extra money, so ask about them ahead of time.

Also be sure that your vendor knows the benefits and disadvantages of various software programs and that the CD produced will include an installer for the program, so the judge can view the video. Most computers have Media Player (and sometimes QuickTime) installed, but the CD always should include an installer for the judge who lacks the player.

* Recycle. You may be able to lower costs by reusing files. For example, if you downloaded cases onto your computer when doing legal research, you can e-mail those to your vendor to include on the CD. Similarly, if you have had videotapes converted to digital files for use in trial presentation software, your vendor may be able to use the raw files for clips in an electronic brief. Not all files work for all purposes, but reusing some can save time and effort.

Cutting-edge technology is useless if the judge never turns on his or her computer. Fortunately, judicial clerks, particularly recent law school graduates, generally appreciate hyperlinked briefs. Most federal district courts and state appellate courts are good venues for electronic briefs, because many of them encourage e-filing and hire recent law school graduates. State trial courts vary more widely, depending on the court's familiarity with electronic filing and budget for hiring law clerks.

If you're unsure whether to file a digital brief, check with the clerk's office. It is quite common for courts to require a separate motion for permission to file a digital brief and to grant that permission routinely. I provide electronic briefs as "courtesy copies" and have never had one rejected.

On a tight schedule, with trial looming, lawyers tend to avoid new technology in favor of basic trial preparation. But tight deadlines actually are the perfect opportunity to use electronic briefs. If the court is running short of time to consider all your motions, it is tempting for the judge to just send everything to the jury. But a hyperlinked brief provides a clear, time-saving map of the case, so it will increase your chances of winning the motion or, at the very least, winning an evidentiary point during trial.

Every litigator and appellate attorney should include hyperlinked briefs as part of their repertoire. These briefs are an exciting way to focus the judge's attention on your arguments and supporting facts. They can be cost-effective and always make the record clearer than an ordinary pleading can. A well-done electronic brief can be the next best thing to sitting in the judge's office and writing the opinion yourself.

Notes

(1.) BankOne Corp. v. Comm'r, 120 T.C. 174, 183 (2003).

(2.) Frank Easterbrook, Twenty Questions for the Appellate Judge (Aug. 2, 2004), Question No. 5, HowAppealing, available at http://legalaffairs.org/ howappealing/20q/2004_08_01_20q-appellate blog_archive.html (last visited Feb. 27, 2006).

(3.) Steve Leben, A Brief Article on Electronic Briefs, 37 CT. REV. 45 (2001).

(4.) Phansalkar v. Andersen, Weinroth & Co., 356 F.3d 188, 189-90 (2d Cir. 2004).

(5.) Making a PDF for e-Filing (Apr. 15, 2004), available at www.pdfforlawyers.com/2004/04/ making_a_pdf_fo.html (last visited Feb. 27, 2006).

(6.) DAVID L. MASTERS, THE LAWYER'S GUIDE TO ADOBE ACROBAT (2006).

(7.) Leben, supra note 3.

DEBORAH AUSBURN practices law in Roswell, Georgia. The views expressed in this article are the author's and do not constitute an endorsement of any product by TRIAL or ATLA.
COPYRIGHT 2006 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2006, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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