CD-ROM: briefing of the future is coming at a click of a mouse near you: appellate courts are moving toward the acceptance of CD-ROM briefs, and they, as well as appellate practitioners, are welcoming the trend. .
Since the first CD-ROM brief filing in 1997, the use of CD-ROM briefs has become more pervasive and is continuing to rise. This certainly will increase in the coming years. Recent high-profile appeals using CD-ROM briefs include Microsoft's antitrust litigation in the U.S. Court of Appeals for the District of Columbia Circuit and the Oklahoma City bombing trial in the U.S. Court of Appeals for the 10th Circuit. The 11th Circuit also has used CD-ROM briefs in both the Bush election recount and the Elian Gonzalez cases.
Advancements in technology have driven down the cost of preparing CD-ROM briefs. Even those cases where the damages in issue are relatively low are now good candidates for CD-ROM briefs, given the advantages they offer to the court and parties.
The CD-ROM brief contains hyperlinks throughout the brief that are connected to the complete record and the legal authorities. This allows the user to jump instantly to specific documents or authorities.
The use of hyperlinking eases access to the record and authorities. For example, suppose the reader of the CD-ROM sees on the computer screen a proposition followed by a case authority. To find, access and review that authority, the reader need only double-click on the citation, which will be underlined, with the mouse, which then pulls up that authority. Readers can review the authority and print it, if they want to do so. When finished reviewing the authority, the CD-ROM user can "backtrack" to the point in the brief where the reader first examined the proposition, and then continue reading the brief.
A CD-ROM brief also can contain secondary links, which are additional hyperlinks contained within the cited material. For example, if the brief cites to the testimony of a witness, the reader can hyperlink to the particular testimony. If within that testimony the witness refers to an exhibit, a secondary link can be added to the exhibit so that the reader can click on the secondary link in the reporter's record testimony and go directly to the exhibit about which the witness is testifying.
Another capability of the CD-ROM brief is the display of video and audio testimony. For instance, in a particular appeal there might be critical testimony from a video deposition that was offered at trial. Rather than just reading what the deponent said, with a CD-ROM the user can click on the hyperlink and pull up the actual video of the individual. A case also might have a particularly relevant video as an exhibit--for example, a videotape of an accident at issue in the case or a video tape created by an expert. The appellate court would be able watch the video without having to find a video player and television monitor to watch the videotape.
Finally, the CD-ROM has a toolbar carrying useful items to annotate the CD-ROM brief. For example, the reader can highlight portions of the electronic brief with a highlighter or add notes to portions of the CD-ROM brief. The reader has the ability to print and review just the highlights or notes or print a copy of the brief with the user's highlights or notes.
The CD-ROM disk, with a four-inch diameter, has the capacity to store up to 80,000 images of non-electronic--that is, scanned--documents or 150,000 pages of electronic text, such as briefing and the reporter's record, if electronic. This storage capacity allows the briefs, tens of thousands of pages of the clerk's record, reporter's record, exhibits (including video or audio), and authorities cited in the briefs to be placed on a single CD-ROM disk.
To include the clerk's record and exhibits, those items are scanned and placed on the CD-ROM. The reporter's record usually will not have to be scanned. If the reporter provides the record on disk, the record can be transferred electronically to the CD-ROM. Video or audio exhibits can be transferred electronically. These items are then hyperlinked to the brief where appropriate.
USE OF CD-ROM BRIEFS
In the last few years, the use of CD-ROM briefs has increased, probably owing to the decreasing expense of production combined with the increasing efficiency for the user. As a result, more courts are adopting rules and procedures for CD-ROM briefs.
A. Federal Courts
Rule 25(a)(3) of the Federal Rules of Appellate Procedure was revised in 1996 to allow these courts to permit the filing of papers by electronic means. Four U.S. federal courts of appeals have promulgated specific rules for CD-ROM briefs. The First, Seventh, 11th, and Federal circuits have adopted local rules governing submission of CD-ROM briefs. Although there are no formal rules, the Second Circuit has released an administrative order that permits CD-ROM brief filings.
Each of these circuits requires that CD-ROM briefs be filed in addition to and not in lieu of paper briefs. The circuit rules also contain restrictions and requirements relating to the form and presentation of the CD-ROM brief, including the number of copies to be submitted. The content and viewing requirements of the CD-ROM are set forth in the rules.
Some courts have very specific timing requirements. For example, the Federal Circuit by Circuit Rule 32.1(c) requires that "within 14 days of docketing an appeal, a party intending to file a corresponding brief must ascertain whether any other party consents or objects. If the other parties consent, the filing party must promptly file with the court a notice of intent to file a corresponding brief." An appellate practitioner contemplating filing a CD-ROM brief should make that decision as early as possible in the appeal. Once the decision is made, counsel should consult the local rules to determine timing, deadlines and requirements of the CD-ROM brief.
Many other federal courts that do not have specific rules allowing the filing of CD-ROM briefs accept them nevertheless. Other courts that have accepted CD-ROM briefs are the U.S. Supreme Court, the 10th Circuit, the Second Circuit, and the District of Columbia Circuit.
B. State Courts
Several state courts have or are considering rules allowing the filing of CD-ROM briefs. The New York Court of Appeals already has done so with Section 500.1 of the New York State Court of Appeals Official Court Rules. In addition, the Washington Supreme Court has proposed the adoption of a rule that would allow CD-ROM briefs. Appellate courts in California, Delaware, Florida, Texas and Wisconsin have allowed the parties to file CD-ROM briefs, although they have no formal rules. Indeed, the California Second District Court of Appeal has launched a pilot project in which it "invites and encourages the voluntary filing" of electronic records and briefs, which it calls "e-records" and "e-briefs."
C. Filing in Courts with No Rules
As a practical matter, a party wishing to submit a CD-ROM brief to a court that does not have a specific rule should contact opposing counsel as early as possible to determine any objections to the filing. During this initial conference, it is a good idea to address the issue of costs for preparing the CD-ROM briefs. Another issue to discuss with opposing counsel is the timing for filing.
The parties should make a joint motion for leave to file CD-ROM briefs. It is recommended that the parties choose one of the comprehensive rules concerning CD-ROM briefs, such as the Federal Circuit rule, and then comply with it.
If one party wants to file a CD-ROM brief, but the other contests that, the proponent of the CD-ROM brief has some choices to make. First, if filing of the brief is critical to the appeal and the other side is complaining of financial concerns associated with the creation of the CD-ROM briefs, the CD-ROM proponent can offer to pay the costs of preparing both parties' CD-ROM briefs. This is a rational decision, especially if the two parties to the appeal are not on the same financial or sophistication level, and such a decision will help convince the court to grant the motion for leave.
If, however, the parties to the appeal are on the same financial footing, then the CD-ROM proponent might want to argue that the other side can forgo having its brief placed on the CD-ROM if it wants to save the expense. Arguing that it is not fair for only one party to file a CD-ROM brief is not likely to succeed in preventing the submission to the court. In fact, the Federal Circuit, addressing an almost identical argument, rejected complaints that having only one party's brief on CD-ROM would remove "procedural symmetry." (1) Commentators have recognized that the concern that filing an electronic brief creates an advantage is "unfounded because a CD-ROM brief contains no more than what has always been available to the appellate court." (2)
There are few court decisions or opinions concerning the filing of CD-ROM briefs. There is some case law, however from courts that have examined the procedural aspects and equity concerns. (3)
The benefits of CD-ROM briefs to appellate practitioners and the courts relate primarily to the amount of material that can be stored on a single disk. Other advantages include help in preparing the brief, the ability to search for specific arguments, and the improvement in presentation of arguments to the court.
A. Convenient Access
One obvious advantage of the CD-ROM brief is the amount of material a single disk may contain. The Washington Supreme Court commented on the usefulness of CD-ROM briefs in a large case:
The record in this case was vast, covering some 57,000 pages of clerk's papers and a report of proceedings of over 12,000 pages. The parties agreed to bear the cost of scanning the record into an electronic format. The parties also submitted their briefs in CD-ROM form with hyperlinks to the record and the cases cited. We express sincere appreciation to the parties for doing this, as it greatly enhanced our ability to handle this case. The savings to the court in time-motion efforts alone enabled us to retrieve and examine relevant parts of the record with ease, and made the record far more accessible than it would have otherwise been. The materials in this case occupy about 50 banker's boxes. We note that there is no reason why parties in more routine appeals to this court should not seriously consider submitting the record and briefs to us in a similar format. (4)
The benefits are at least twofold. First, the reader has easy access to any portions of a large record. With the entire record on the CD-ROM, one can review arguments and then link to those portions of the record that correspond with that argument without having to locate the materials physically in the hard copy of the voluminous record. This may be particularly helpful to judges who work on a case while out of their offices and don't fancy carrying a bulky record with them. This benefit also makes it very convenient to check the validity of the parties' citations to the record.
Second, the reader has easy access to large numbers of authorities. Lengthy or hard-to-find authorities are just a click away. If an authority is particularly helpful or persuasive, the reader can print it directly from the CD-ROM.
The primary beneficiary of easier access to the record and authorities may be the appellate judges. When examining complex cases with large records, they should be able to reduce the time in preparing for oral arguments and in writing opinions. Having the record and authorities on CD-ROM also makes it quicker and easier for courts to verify the accuracy of citations.
B. Search Capability
The CD-ROM brief also contains search applications. It is possible to search for a word or phrase in the briefs, authorities or record and have the search results appear on the screen in a list. The reader can then click on the list to review where this word or phrase was used.
C. Aid in Presenting Arguments
Another advantage of a CD-ROM brief is that it is a superior method of presentation to the court. With every reference hyperlinked, arguments come across more clearly and powerfully. All of the supporting information for the arguments are instantly accessible. The appellate practitioner is enabled to intertwine arguments and supporting record and case law with ease. The reader of an electronic brief can review a particular argument and then immediately access cases and record cites.
D. Help in Drafting Briefs
Another advantage lies in the preparation of the brief itself. As soon as it is prepared, the appellate record can be put on CD-ROM, and this then can be used in preparing the brief. The search advantages and ease of accessing the record are used when preparing the brief. In a record of thousands of pages, the ability to search the record and pull up very specific information could reduce hours of reviewing testimony, exhibits and pleadings significantly. Appellees, after reviewing the brief of appellant, can check the veracity of the citations in the brief quickly and can more easily search the record for information that refutes the appellant's arguments.
Advancements in the technology of CD-ROM reproduction ("burning CDs") and scanning hardware, as well as ease of creating certain software and programs, have driven down the costs of creating CD-ROM briefs. The options available now to the appellate practitioner are either to use a professional CD-ROM publishing company or to publish the CD-ROM in-house. Either is a viable option, with cost and quality being the two primary variables in deciding how to proceed.
A. Professional Preparation
The cost of electronic briefs varies depending primarily on the size of the project. For example, preparing a CD-ROM brief in a two-party appeal with a small appellate record and short briefs will be substantially less expensive than in a multi-party case with a large record and extensive briefing. One of the main costs when using a professional publisher is the publishing fee, which is the fee charged by the company in preparing the electronic brief itself and covers licensing fees for viewers programs and time incurred in setting up the program to create the hyperlinks.
A list of factors that will affect the cost of a CD-ROM brief includes (1) the length of clerk's record, (2) the length of the reporter's record, (3) the number and length of the briefs, (4) the number of authorities cited in the briefs, (5) the number of hyperlinks in the brief, (6) scheduling requirements, (7) the number of secondary links (from underlying document to underlying document) and (8) the number of color exhibits.
A party concerned with costs should bear in mind that the following estimated numbers are for the total project of preparing a CD-ROM containing all the parties' briefs. In most cases, each party will pay for its own brief or briefs. There are many companies that prepare CD-ROM briefs, including RealLegal, Monarch Information Services, Trial Graphics, Special Counsel, Doar, and Record Press.
Following are two samples are rough estimates of what it might cost to prepare a brief using a professional CD-ROM brief publishing company.
1. Sample Costs--Large Appeal
Publishing fee for brief of the appellant of 50 pages, $8,000
Publishing fee for brief of the appellee of 50 pages, $8,000
Publishing fee for reply brief of the appellant of 25 pages, $5,000
Clerk's record of 5,000 pages at 25 cents per scan, $1,250
150 cases, statutes and other authorities at Westlaw rates estimated at $7.50 per case, $1,125
Estimated total project cost, $23,375
2. Sample Costs--Small Appeal
Publishing fee for brief of the appellant of 30 pages, $4,500
Publishing fee for brief of the appellee of 30 pages, $4,500
Publishing fee for reply brief of the appellant of 15 pages, $1,000
Clerk's record of 400 pages at 25 cents per scan, $100
40 cases, statutes and other authorities at Westlaw rates estimated at $7.50 per case, $300
Estimated total project cost, $10,400
B. In-house Preparation
It also is possible to prepare a CD-ROM brief without using a professional CD-ROM brief publisher. The primary hardware requirements for preparing a CD-ROM brief are a computer that has sufficient RAM (random access memory) and adequate programs or viewers to review the material that is linked within the brief. A compact disk recordable (CD-R) drive, the device that records information onto the CD, also will be needed. Finally, document scanning equipment will be needed to scan the clerk's record and other hard-copy documents such as exhibits.
The process of converting a paper brief to a CD-ROM brief in-house first requires converting the briefs to a portable document format (PDF) file from the word processing program. This is a relatively easy conversion. The clerk's record also must be scanned into a PDF file, which can be accomplished with standard scanning equipment. The reporter's record then is transferred to the CD-ROM electronically.
Westlaw and Lexis documents can be downloaded into a word processing program and then converted to a PDF file as well. Both Westlaw and Lexis allow their customers to download their cases when requested. Westlaw, however, requires a written request identifying the cases to be downloaded.
The final step is to add the hyperlinks. This will require someone with proficient computer skills and knowledge of linking documents in a PDF file. Once the initial CD-ROM is completed, the cost of making additional copies is nominal.
Aside from the hardware requirements and necessary programs, the biggest cost associated with the brief will be the human resources and skill level required to prepare the CD-ROM. The training involved in teaching someone in-house to add the links and prepare a brief is less than one might expect: "[B]eing able to produce a CD-ROM brief only requires basic word processing skills and as little as two weeks of training?
The future for CD-ROM briefs is bright, given that lawyers always want to improve the persuasiveness of their arguments. CD-ROM briefs will permit more creativity in the presentation of arguments. As the courts and appellate lawyers become more familiar with CD-ROM briefs, it is likely that their use will increase. Decreases in the cost of preparation will make it feasible to have CD-ROM briefs in almost any appeal.
The increased use of digital video disk (DVD) technology presages the next logical improvement. DVD briefs will not only enhance the video and audio capabilities of current CD-ROM briefs, but also could greatly improve moving within documents. DVD also has offers greater storage capability, as much as seven times the amount of material (over a million pages of text) of a regular CD-ROM.
With the proliferation of rules addressing CD-ROM submission of briefs to the courts, it seems clear that courts are ready to allow technology to increase judicial efficiency. This combination of ease of use and decreasing cost, along with the fact that CD-ROM briefs enhance appellate arguments, leaves one conclusion: CD-ROMs are the briefing of the future.
(1.) In re Berg, 43 U.S.P.Q. 1703, 1703 (Fed. Cir. 1997).
(2.) Joanne M. Snow, CD-ROM Briefs: Must Today's High Tech Lawyers Wait until the Playing Field Is Level? 17 J. MARSHALL J. COMPUTER & INFO. L. 615, 632 (1999).
(3.) See Yukijo Ltd. v. Shiro Watanabe, 111 F.3d 883, 887 (Fed. Cir. 1997); In re Berg, 43 U.S.P.Q.2d at 1703.
(4.) Aluminum Co. of Am. v. Aetna Cas. & Surety Co., 998 P.2d 856, 861 n.1 (Wash. 2000).
(5.) Snow, supra note 2, at 618.
IADC member Warren W. Harris heads the appellate group of Bracewell & Patterson, L.L.P., Houston. He is an adjunct professor of appellate advocacy at the University of Houston Law Center and has served as a briefing attorney for the Texas Supreme Court. He is a graduate of the University of Houston (B.B.A. 1985) and of its Law Center (J.D. 1988).
Richard C. Kroger is corporate counsel with Stewart and Stevenson Services Inc. and chief division counsel for its Tactical Vehicle Systems Division. Formerly an associate at Bracewell & Patterson, he is a graduate of the University of Houston (J.D.) and received M.B.A. and J.D. degrees from Baylor University.