Beginning today, Texas Supreme Court litigants are required to file electronic versions of their briefs along with their paper copies.
This is not a true e-filing system because it does not replace paper briefs. Rather, the Texas Supreme Court is requiring that PDFs supplement the paper briefs. This will let the Court more easily publish those PDFs to the public. And it will permit the Justices and their staff to work with briefs more easily when evaluating petitions and writing opinions.
The Court’s order is in this PDF. I wrote about it in this blog post. Before now, the Court only asked for PDFs in a fraction of cases and only several months into the review process. It was also willing to accept PDFs that were little more than scanned pictures of briefs, which were not very useful.
That changes beginning today.
What’s required now?
The key elements are:
Scanning briefs is no longer acceptable. The PDF of the brief itself must be generated by your word-processing software or a program such as Adobe Acrobat that works directly from your word-processing file. Attorneys can mark their signature with an “/s/” if they choose. (( The paper copy remains the official copy, so I’m not sure this signature necessary at all. It might be a nice way for you to mark your own internal word processing documents to be sure you are submitting the final version. ))
Appendix items, too, must be submitted as PDF — and they must be word-searchable. Although the order permits scanning these documents (which makes sense), the resulting file must also be made word-searchable. The Court suggests using OCR software or features, such as those in commercial versions of Adobe Acrobat.
The resulting PDF file must be saved with a filename in the particular form prescribed by the rule (such as “09-0182.petbom.pdf”) so that it can be quickly classified by the clerk’s office. You should keep a copy of the Court’s order handy for reference.
The PDF file must then be emailed to the Court at “firstname.lastname@example.org”. No more looking for a blank CD-ROM or floppy disk.
What’s likely to trip you up?
The requirement to make the appendix items word-searchable is likely to cause the most consternation.
Some appendix items are required with your initial petition for review, such as the trial court’s judgment, any jury charge, and the court of appeals’s opinion. Other items are required but frequently forgotten, such as the “text of any … statute … on which the argument is based … and the text of any contract or other document that is central to the argument.” (( For your own good, please consult Rule 53.2(k)(1) instead of relying on my summary of the rule. ))
The Court suggests using OCR software. But some of these required items — notably, jury charges and trial court orders — tend to have critical handwritten notations. Scribbled changes, cross-outs, and jury answers will likely be garbled by the OCR system without some human help. That, in turn, may take a little software training or a special vendor.
Over time, I think this requirement of the rule will evolve, as the Court and litigants get more experience. The Court wants an easier-to-use brief, but the added benefit of making the appendix word-searchable may not justify its burden.
But it does have one important side-effect: Making the appendix word-searchable means the PDF can easily be “reflowed” to show on a portable device like a Kindle or ebook reader. And some Justices (including, notably, the Chief Justice) like to review documents on their portable devices.
So, as the technology for reading PDFs at the Court’s end improves, the requirement for a searchable appendix may become less important to the Court. Or, as the software tools for making ebriefs get better, it may become less burdensome for litigants.
In the meantime, it won’t go unnoticed if you ignore this rule. The clerk’s office (if you’re lucky) or the Court will notice.
Todd Smith has some thoughts about electronic filing over at Texas Appellate Law Blog