We know how many signed opinions each Justice wrote as soon as they’re published. But the per curiam opinions are a mystery. It’s not until the Texas Office of Court Administration (OCA) releases its year-end report that we get a count of how many were credited to each Justice.

Now that OCA has released its report, I’ve updated my chart of opinion authors, which shows:

• Justice Hecht led the way with 27 deciding opinions — 15 signed and 12 per curiams.

• Justice Johnson (19 deciding opinions) and Justice Wainwright (16 deciding opinions) also exceeded the Court’s average of slightly more than 12 per Justice. (Justice Medina and Chief Justice Jefferson were very close to that mark.)

• The most frequent author of concurring opinions was Justice Willett with 7, almost half the Court’s output of 16 concurrences. Chief Justice Jefferson was a strong second with 4 concurrences.

• The most frequent author of dissenting opinions was Justice Johnson with 6, closely followed by Justice Lehrmann with 5. Justice Wainwright also had 5, if you fold in opinions that were both “concurring and dissenting.” Every Justice authored at least one true dissenting opinion.

• No Justice wrote more per curiams than signed majority opinions. Only Justice Hecht authored more per curiams than separate (concurring or dissenting) opinions. The focus was very much on clearing out the signed opinions from the Court’s docket.

These OCA statistics focus on opinion authorship — the traditional (albeit imperfect) measure of output for appellate judges.

We might soon have some new measures, thanks to recent legislative demands for details about how individual Justices have been meeting the Court’s internal deadlines. And as it turns out, those reports are due on December 1st of each year.¹

1. You can find the language on page 3 of this very large PDF, part of the appropriations bill in 2009.

I’ve been working on a project to track the U.S. Supreme Court, much like my DocketDB project tracks the Texas Supreme Court. The site is CertPool.com. I put a simple version of it online late last year, and I’ve made improvements as I had time. The process has been quiet. I’m not sure that I ever mentioned it on this blog, although it has been noticed by the Volokh Conspiracy, and then by Crime and Consequences blog and a handful of others.

The construction is now far enough along to be interesting. If your practice extends beyond Texas — or if you’re just a really big appellate geek like me — here’s what you will find:

Slicing the docket by state or circuit of origin

This was the first feature I implemented. In part, I wanted to know which Texas cases that I’ve read (or blogged) about are being challenged. This sort of view might also be useful for state and local legal-beat reporters who want to share interesting (and local) cert petitions with their readers.

Petitions are broken out by state or circuit. For example, here are the pending U.S. Supreme Court cases from state courts in Texas. This set includes cases from the Texas Supreme Court (rare), Court of Criminal Appeals (common), or the intermediate courts of appeals (pretty common, after the Texas Supreme Court denies review). A different page shows the federal Fifth Circuit cases now pending in the U.S. Supreme Court.

Not visiting this blog from Texas? Then try this link instead. Or you can browse the list of the active cert petitions here.

Breaking it out by origin is nice. Even nicer, to my mind, is that these are also broken down by stage — has a brief in opposition (BIO) been requested? is the case set for conference? has review been granted?

The badges highlight which local cases have attracted amicus briefs. And you can see which cases have been relisted by the Court from one conference to the next — or which have been sitting a long time without action, signaling that the petition might be a candidate for a future per curiam or GVR (grant vacate and remand) in light of another pending case.

Those conference dates are important. Unlike many other Courts, the U.S. Supreme Court makes very public when a case is being discussed at conference. For counsel, that means you can plan to be waiting anxiously the next business day to see the orders list. (And for the press, it means you can know with great precision the most relevant time to run the story.)

The next conference date is September 26, 2011 — the so-called “Long Conference” after the Supreme Court’s long summer recess.

Individual docket pages and case tracking

Clicking a case name takes you to a basic docket page, which highlights the case events, the parties, and the attorneys.¹

The real find here is in the very top right, which (for active cases) is a link to an RSS feed of case events for the case. If you subscribe to this RSS feed in whatever software you prefer (such as Google Reader, your browser, or even your email program), you will get updates about new case events.

You can subscribe to individual case updates, as you see fit, without having to worry about an account. ²

The RSS feature was inspired by a post I read a couple of years ago from the Sunlight Foundation about how they would redesign the Supreme Court’s site. (Some of the other features mentioned in that post are already available for my Texas-focused DocketDB site.)

Amicus and CVSG information

There are some basic amicus-watching features on Cert Pool. You can see which cases have attracted at least one amicus brief at the Supreme Court cert stage.

There is a separate list highlighting the cases in which the U.S. Supreme Court has requested the views of the U.S. Solicitor General (known as “CVSGs”).

What comes next?

If you’re a power user of DocketDB’s Texas site, you’ll notice some things missing from CertPool.com. It doesn’t yet break out voting patterns of the Justices (one of my favorite features of the Texas site). Unlike the Texas site, it doesn’t yet display the newspaper articles or blog posts about each case. And there isn’t yet a way to tag or browse pending cases by issue.³

Some feedback from you would help me decide what to implement next. I’d like to have a few more features in place before the U.S. Supreme Court comes back into session this October.

1. It doesn’t yet have links to the briefs, to the lower court opinions, or to the Supreme Court’s ultimate opinions in the case. That information is quite scattered for U.S. Supreme Court cases and can be folded in later. For now, I’m focusing on the unique aspect of CertPool.com, which is docket monitoring.
2. Tracking Texas cases on DocketDB required you to create an account, which made it easy for users to manage a complex tracking list and for me to send email updates. I may add an account layer to CertPool.com later, because it can power much more sophisticated tracking than RSS.
3. And it also doesn’t yet cover the “original proceedings,” such as disputes between States over their territorial borders.

As blog readers know, the Texas state appellate courts are shifting toward electronic briefs. Unlike the federal system, the Texas rules permit advocates to make use of hyperlinks and encourage the use of internal bookmarks to ease navigation. The focus is on making the briefs more useful to the ultimate readers — the judges and law clerks who will use them to decide cases and write appellate opinions.

Last Thursday, I gave a presentation about electronic briefs with Blake Hawthorne at the UT Conference on State and Federal Appeals. We covered quite a bit of ground for a thirty-minute talk — the basics of how to make these briefs, some survey results from judges and staff members who have been using them for the past year, and some clips of video interviews with Texas Supreme Court Justices on the same subject.

If you weren’t able to attend and want to see the slides, you can download a plain PDF version. Unfortunately, that lacks both the live demos and the video clips. ¹

And as promised, I am posting the full-length interviews with the Justices. You can play them within your web browser using these links. (The audio levels are fairly low, so you may want to grab a pair of earbuds before you hit ‘play’.) The interviews range between about eight and sixteen minutes, but they’re well worth your time if you are practicing in the Texas Supreme Court.

Justice Hecht

Justice Johnson

Justice Wainwright

P.S. I had a little trouble getting these to play in Firefox on the Mac. They seem to play fine in other browsers.

1. There is a much, much larger version that includes the video clips. I can post that later this month if there is interest.

Tim Lee has done a study of redaction failures using a nice-sized subset of the federal PACER database. More specifically, he looked at the documents donated to the “RECAP” database, assembled as volunteers donated copies of PACER filings as they downloaded them.

Tim wrote a program that analyzed each PDF file, looking for the tell-tale hand-drawn rectangles that are a hallmark of poor redaction.

In a sample size of 1.8 million PACER documents, he found about 2000 documents with these rectangles. He narrowed that set to documents where these rectangles sat on top of text — and after checking the best candidates by hand — found 194 with failed redactions. Most of those (“about 130″) were from commercial litigation. In addition to the redaction mistakes caught by this program, there were about 1700 other redaction failures that had been caught before the documents were donated to RECAP.¹ An overall ratio of 1 redaction failure per 1000 filings seems pretty low to me. I am curious how many of those 1.8 million documents were scanned from paper rather than generated as native PDFs. Native PDFs can be more challenging to redact, and the newer federal rules require them.

How courts can avoid this problem going forward

Tim has graciously donated this code to the public domain. As things stand, it requires a little technical savvy.² But it’s available to any court officials who might want to fold it into their e-filing systems or to anyone else who wants to build a more user-friendly interface.

How you can redact properly

Redaction is covered in the blog’s resources page about how to make e-briefs that satisfy the Texas rules. There is a deeper discussion about strategies for redaction in the document called “Workflow for E-Briefs,” beginning at page 15 of the PDF.

1. Why so many? A large number of the RECAP documents had been donated by Carl Malamud, who spent some time trying to remove the sensitive information.
2. If you see the word “perl” and think of a dromedary, then you should have no problems. Otherwise, you might want to wait for someone to add an interface on top of these raw scripts.

Front-page search

The DocketDB home page now has a search box in the top right. Just start typing part of the name of a pending or recent case — and autocomplete will find the docket number for you.

It’s a small feature, but even I am finding it much easier to use DocketDB as the first stop in looking up a pending case. Once there, you can quickly find the slip opinions, the relevant court of appeals information, briefs from the case, or the most recent events.

Issues/Granted

A persistent question is how to track what issues are pending. This is a project that all court-watchers do in our own ways. But I realized that the DocketDB engine would be a good platform for a community effort.

If you go to http://docketdb.com/issues/granted, you’ll see the early results. This collects keyword tags about the pending cases in which the Court has granted review. (It’s focused on the granted petitions and those that have been submitted after oral argument.) Click on a tag, and you’ll be taken to a list of the relevant cases, with the usual links to news articles, briefs, and the most current status of the case.

My hesitation in rolling out this feature is that I don’t want to create a job for myself. ¹ So, as I said at the Practicing Before the Supreme Court seminar, I’m approaching this “Issues/Granted” page as a community feature. I am happy to supply the platform and to keep the underlying data about each case fresh.

But the keywords require a human touch. Anyone registered with DocketDB can help tend this garden by adding relevant tags, and I hope you will participate. If enough of you pitch in just a little time, we all benefit.²

To help everyone stay on the same page, there is now an autocomplete feature when you enter a tag — just start typing a new tag, and you’ll see what related keywords are already in the database.

An integrated version of the Court’s opinions

As you know, the Court publishes its opinions both as raw HTML files and as PDF slip opinions. In the past, I have linked to the HTML version on the Court’s website, which redirected your browser to that page.

Starting this week, DocketDB is now republishing these opinions. Here’s an example or two. And here’s why:

• Readability: The Court’s HTML version is generated by a word processor, and the result is text that wraps edge-to-edge on the screen. It’s often frustrating to read; I find myself re-sizing the browser window nearly every time. I opted to have a single-column of text that’s a more readable width.

• Related opinions: My version collects all opinions from the same case along the sidebar — so you can quickly access a concurrence or dissent.

• Faces: Everybody likes faces.

• Warnings for withdrawn or at-risk opinions: My version gives you a warning if an opinion has been withdrawn (or rehearing has been granted). It gives you a gentler warning if a rehearing motion is still pending. These notices are kept up-to-date by the DocketDB database.

• Link to the PDF: If you want to download the PDF version, there’s a direct link from the HTML page. You no longer have to backtrack to find it.

• Quicker access to other DocketDB resources: You are now just a click away from links to related news stories, the underlying court of appeals information, or a list of the electronic briefs.

Those are the initial benefits. I’m also excited about the other, more advanced features that this should make possible. Your input is appreciated and, as always, you’ll be the first to know.

1. Well, I didn’t want to create another job for myself.
2. If you have questions about how this keyword system works, feel free to email me or give me a call.

For trial lawyers, this may seem like no big deal. “How hard can it be to make a basic PDF?” But as both sides of the appellate divide know, trial briefs are not used like appellate briefs. Appellate briefs become dog-eared research tools for the law clerks and judges as they write the Court’s opinions. The Texas move toward appellate e-filing seems driven by a desire to make judges’ and law clerks’ lives better, and the new rules permit enhancements such as internal bookmarks and hyperlinks.¹

Last year, I spoke with Blake Hawthorne about the new electronic brief requirements at the Texas Supreme Court. This year, we’re back to give a more in-depth talk, with some practical tips and — here’s why I’m writing this post today — some practical answers from Texas appellate judges about how they’re using your briefs, what they find helpful and appreciate seeing, and what they find to be a waste of time or even a distraction.

So what are your questions? What issues have come up in your firm as you try to decide how to approach this process? If you’re a skeptic of this change, what questions might change your mind — or do you think might persuade the rest of us if only we knew the answer?

Please feel free to send me an email or give me a call, if you’d rather have a little privacy for your questions.

1. The federal model started the other way, with its origin in large asbestos dockets. The U.S. Supreme Court still has nothing approaching e-filing. Although some Justices use electronic devices to read briefs — with an ideological split between Kindles and iPads — the briefs themselves are just dead images of the printed booklets.

Effective March 28, 2011, you may electronically file documents, pay your fees, and serve opposing counsel using the Texas.gov electronic filing system.

Using this e-filing system is, at this time, still voluntary. I look forward to trying it out.

Some paper is still required

Please be aware that the electronic-filing order still requires counsel to send two paper copies of the brief to the clerk’s office.

As things stand, counsel in the Texas Supreme Court have two choices — both of which require some mix between electronic and paper copies:

• Use the electronic-filing portal to file and serve a PDF that counts as the official original, plus submit two paper copies to the clerk’s office.

• Submit an original paper version plus eleven more paper copies to the clerk’s office, serve them on opposing counsel, and also submit the required PDF by email to the clerk’s office.

So while this new e-filing order isn’t strictly paperless, it is a big step in that direction. As a solo appellate lawyer, I certainly look forward to simplifying my workflow on the days briefs are due.

The program was supposed to start on March 14, 2011. This technical problem will, as I understand it, push the schedule back by a few weeks.

I’ll let you know when the voluntary e-filing goes online.

Until then, counsel are still required to submit an electronic version by email (as before), along with the required number of paper copies.

1. Effective March 14, 2011: In the Texas Supreme Court, parties now have a choice whether to make a traditional paper filing plus an e-brief, or whether instead to choose electronic filing through an approved provider and then submit just two copies (for most briefs). The acceptable format of an e-brief remains largely unchanged from before. For now, the e-filing is voluntary.¹ You can get the order about SCOTX filings here.

2. In the courts of appeals, the Court has now brought standardization to what just a few weeks ago I noted was a quite confusing situation. Through an amendment to the Texas Rules of Appellate Procedure, there is now a standard local rule for courts of appeals to adopt if they want to accept courtesy e-briefs or to opt into the statewide e-filing system. You can get the order amending the Texas Rules of Appellate Procedure & setting out these form local rules here.

There may be a transition period as courts of appeals decide how they want to ease out of their own practices into these new local rules.² But the new rules will make sorting things out much easier. Going forward, if a court of appeals accepts e-briefs, then you must prepare it in the same manner that you would for the Texas Supreme Court.

I’m sure that I will have more to say about these rules over time. For now, I just wanted to pass along the news.

1. If you go the traditional route, the e-brief is due the same day as the paper briefs are filed. If you go the e-filing route, your paper copies can be submitted the next day.
2. Normally, courts of appeals must submit new local rules for formal approval by the Supreme Court. I assume that is also necessary if a court of appeals wants to adopt one of these form rules.

In preparing for an upcoming CLE talk, I set out to compile a chart of the current e-brief rules in each of Texas’s fourteen intermediate courts of appeals. To do this, I went through each court’s website and published internal operating procedures (IOPs), where those were available.

Of the fourteen courts, twelve of their websites mention electronic briefs in some form. Among those:

• In three, an electronic brief is either required or made a strong suggestion: the Fifth, Tenth, and Fourteenth Courts.

• In three more, an electronic brief is requested: the Second, Third, and Seventh Courts.

• In four others, electronic briefs are accepted: the Fourth, Eighth, Ninth, and Thirteenth Courts.

• And two say that they don’t yet receive them: the Sixth and Eleventh Courts.

I’ve posted the detailed breakdown by court.¹

There are some differences under each court’s rules about what items they permit to be included in the PDF or on the CD-ROM. (The Tenth Court, notably, prohibits any record pages from being included. On the other hand, the Tenth Court — like the Texas Supreme Court — is already publishing these e-briefs online for the public. Its rule about record pages seems to reflect a concern about redacting sensitive material, which the Texas Supreme Court chose to address instead through a strict redaction policy.)

The language of these policies also varies with regard to hyperlinking. No courts prohibit internal bookmarks or hyperlinks within the document. Some courts say that external hyperlinks can only be pointed at resources that would have been proper appendix items under TRAP 38.

As the Texas appellate courts move closer to a statewide e-filing system, we can expect these rules to become more uniform. Until then, appellate lawyers who want to file electronic briefs will have to watch the local practices carefully. But the same e-brief techniques you use for the Texas Supreme Court should work just fine to create helpful briefs for these other courts as well.

1. Over time, I’d also like to get some clarification from a few of these courts; I think the websites might be lagging behind their current practices.