The Texas Supreme Court issued two sets of orders today related to e-filing of appellate briefs in Texas.

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. [↩]

Update: On March 1, 2011, the Texas Supreme Court issued some new rules designed to standardize these procedures.

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. [↩]

We don’t have true e-filing yet in Texas appellate courts, but the Texas Supreme Court has just issued another order to inch the bar and court personnel in that direction.

In February, the Court started requiring a PDF with most substantive briefs — and set out detailed requirements about how those PDFs could be formatted. In May, the Court made some clarifications and for the first time required counsel to register for email notices and to serve these PDFs on opposing counsel.

The Court has just issued a new electronic-briefing order that broadens the set of papers that require an electronic version. Effective today, the order includes all substantive briefs (including amicus briefs), as well as:

(7) all motions, responses to motions, and replies in support of motions, except for motions for extension of time.

The old rule specified only two kinds of motions that required electronic versions (motions for rehearing and for emergency stay). The order’s new language goes much farther, and it makes explicit that response and reply briefs are included.

Jakob Nielsen has released a study of how people experience reading on different devices — the iPad, the Kindle, a computer screen, and a paper book.

(If you’ve seen Robert Dubose’s talk about “Legal Writing for the Rewired Brain,” you may remember the striking F-shaped reading pattern, showing how readers’ eyes skipped across a web page. That was Jakob Nielsen’s study.)

Nielsen’s results:

[E]ven the current generation [of e-reader devices] is almost as good as print in formal performance metrics — and actually scores slightly higher in user satisfaction.

The finding that’s grabbing headlines, however, relates to raw reading speed. They note the study’s finding of a slight speed edge to paper books compared to the iPad or Kindle.¹

But the buried lede might be that all three of these handheld devices were vastly superior to reading on a computer monitor. The iPad, Kindle, and paper book scored a 5.8, 5.7, and 5.6 (out of 7.0) for user satisfaction; the PC monitor scored a 3.6.

A note for attorneys writing electronic briefs

Nielsen studied “linear, narrative content” (he used Hemingway short stories) “because it’s the primary use case for e-book readers.”

That sounds like the idealized image we might have of a judge sitting down with each brief, starting at page 1 (or page i), and working through to the conclusion.

That’s not how I experience briefs, however, and I suspect it’s not how most judges do, either. Although we write briefs to have a narrative flow, they quickly become a random-access medium. Judges and law clerks need to locate the relevant discussion of a particular issue, case, or piece of evidence. PDF versions are weak in the actual page-flipping, but they have great strengths in internal cross-references and search.

That said, paper briefs still have an indisputable advantage in our ability to “spread them out on a table” so that a reader can quickly compare what all the parties say about an issue.

In theory, the same thing can be accomplished with electronic briefs. But that will take everyone submitting easily searchable PDFs — and judges having a nice, big monitor or two on which to “spread them out.”

1. The study did not try to distinguish degrees of reading comprehension or retention. Participants were given a fairly easy quiz, designed just to ensure they had read the pieces. [↩]

Yesterday afternoon, the State Bar of Texas Appellate Section hosted a seminar for in-house and counsel and appellate lawyers. There were six panels covering a wide range of topics, from when you need to seek appellate counsel to how to structure fees in a way that works for everyone.

The line of the day may belong to Judge Yeakel of the Western District of Texas, who was on a panel discussing how to use appellate counsel in district courts. He noted how much energy was spent on discovery that ultimately didn’t advance a legal issue in the case. Calling out some earlier panelists’ description of appellate counsel as “a luxury,” he said, “You’re looking at it wrong if you spend all the money on discovery and think appellate counsel is a luxury.”

I was very happy to participate in one of the panels (with Blake Hawthorne) on the subject of how technology is changing appellate practice. Someone asked during the Q&A if the slides we used to guide our discussion would be available, so I am posting them here. Those who want to see the more detailed papers and slides we prepared for the UT appellate program earlier this month can find them on this page.

For all the work Adobe has done to make PDF documents hyperlinked, it has not included a basic navigational feature — the back button.

This weekend, I saw my one-year-old nephew operate his father’s iPhone. He swiped to unlock, saw an unfamiliar screen (the mail app), quickly clicked the home button to clear it out, saw the application icons pop up, quickly swiped across a couple of pages to find his children’s application, clicked the application icon to launch it, saw the splash screen load in landscape mode, and turned the device to that orientation. He did all this like a pro. ¹

He can’t yet speak. He’s been walking for a few weeks. But he already uses a button to back out of something unfamiliar into something familiar.

So, when I use a modern, expensive electronic brief that is built on hyperlinks — whether through links inside one PDF document or links to other files stored on a CD-ROM — it’s a shock that Adobe Reader doesn’t display a “back” button. Every web browser displays such a button prominently; some third-party PDF readers do. Adobe’s own product does not.

It’s buried under a menu.

It turns out, however, that a similar function is buried in there. If you enjoy using aiming your mouse at small menus, the function is under “View >> Go To >> Previous View.” ²

Keyboard shortcuts to the rescue

Luckily, there’s also a keyboard shortcut that has made my use of e-briefs much more fluid. On Windows, the shortcut for “Previous View” is to hold down “alt” and press the left arrow on your keyboard. On the Mac, you use the command (⌘) button and the left arrow.

This becomes second nature pretty fast. After checking out a linked source, you can go back to your spot in the brief without lifting your hands from the keyboard.

If you want a clickable button, you can customize the default toolbar

To display a graphic button like this in your toolbar, Adobe asks you to navigate to the Tools menu and select “customize toolbars…”

This brings up a dizzying array of options, but you’re looking for this “Previous View” toggle switch:

From here, you can add whatever menu buttons to your Adobe toolbar make you happy. Go crazy. But for the basic task of navigating back to a previous view, I find the keyboard shortcut to be faster and to be less distracting.

1. I’m sure your children are just as adept. If you haven’t watched a toddler operate an iPhone, here’s a video his mother took of him unlocking and using the phone a few weeks ago. [↩]
2. There’s a subtle nuance from Adobe — it’s not really the previous page, it’s the previous view. That means you might have to tap it a time or two to get back where you want. Someday perhaps they will make an equally hard-to-find function that takes you back to the last spot where you hit a navigational link, which would be more precisely how a back button works. [↩]

I’ll be speaking today with Blake Hawthorne at the UT State and Federal Appeals Conference about some recent changes in electronic briefing rules and what they mean for appellate advocacy.

The paper that goes with our presentation is posted here. It covers the big picture, as well as some practical tips for improving your electronic briefs. I’m also posting a PDF of the slides from our talk.

If you’re interested in a how-to guide, last week I posted a working paper about how to make simple electronic briefs. It offers my own suggested workflow through the major steps of the process, as well as some tips about redacting safely.

The blog has covered the Texas Supreme Court’s new rules for electronic briefs, including a few pointers on what’s likely to trip you up.¹

Today, I’m posting my own guide about how to make electronic briefs for the Texas Supreme Court. You can access the most current version through this link.²

My suggested workflow leaves room for the more advanced (and optional) steps of making internal bookmarks and simple hyperlinks — both of which are permitted within the Texas Supreme Court order. I also offer a little advice about redacting sensitive information from your PDF with confidence.

Upcoming Talk

Next week, I’ll be speaking with Blake Hawthorne at the UT Conference on State and Federal Appeals about how electronic briefs fit into appellate practice. It’s a short talk, but we will try to cover the big picture and offer some practical advice.

In the spirit of Kendall Gray’s nice series of blog posts previewing his panel on oral advocacy, I’d also like to know what’s on your mind before the conference. How do you see electronic briefs affecting written advocacy?

1. The Court made a few tweaks to the rule (primarily about emailed copies) effective May 31. [↩]
2. I chose to host the guide at Google Docs for easy updating. You don’t need an account to view the file. And if you want to download a PDF version, you can do so under the “File” menu on the Google Docs menu bar. [↩]

In a blog post this afternoon, Google has announced that it will be making some changes to Buzz.

That’s good news.

In the future (“starting this week”), new users will be presented with clearer options. At some later time (“over the next couple weeks”), users whose privacy has already been compromised without their knowing might be prompted to take some corrective action. And users will (eventually) get a button with their Gmail settings that can actually disable Buzz.¹ Buzz will continue to be the default setting for Gmail — users will have to individually click to opt-out.

Read more

1. I just checked my Gmail account. It’s not there yet. [↩]

I received lots of feedback to yesterday’s post “Lawyers (or journalists) with Gmail accounts: Careful with the Google Buzz”. My focus was the privacy implication of Google automatically publishing the identity of people you have communicated with in the past.

Read more

Do you use Gmail, even for personal mail? Do any of your clients use Gmail?

There was a pretty massive shift in your privacy a couple of days ago. You might not have noticed it. But unless you take a few steps to protect yourself, Google may be sharing some of your confidences with the world.

Here’s what that might mean for you — and four privacy settings that you might want to check today.

Read more. Much more.

While we’re in the process of moving to electronic briefs, perhaps the time has come to rethink how we record trial court proceedings.

A recent post on CourTex raises that question and links to a report from a national court administration group that suggests digital recording for trials.

Read more