Nothing has changed, and yet
everything has changed. Depending
on how deeply you delve, both
statements accurately describe
the impact technology has had
on appellate litigation over
the past fifteen years.
Today, as in the past, appellate
briefs printed on paper are
submitted to courts, along with
multi-volume appendices, also
printed on paper. That mass
of paper is then shipped to
appellate judges assigned to
decide the case. Next, the judges
read through the briefs and
look at the relevant portions
of the record. If oral argument
occurs, the judges and lawyers
all travel to the same courtroom
to argue the case. Sometime
thereafter, the court issues
a written decision, which it
mails to the parties. In these
respects, technology has had
very little impact on appellate
litigation over the past decade
and a half.
But during that same period,
technology has radically changed
how appellate lawyers and judges
do their work. Fifteen years
ago, few law offices had personal
computers. Email was not readily
available, and who among us
had yet heard of the Internet?
If you hoped to determine whether
a reported case remained good
law, you had to go to a library
that had bound volumes of Shepards,
find the case, look at every
pertinent later volume and soft-cover
update, and then hope that nothing
untoward had happened since
the last update was published.
And, if you were working on
a case that involved law from
a faraway state, you had to
travel to a law library that
had within its collection that
state's statutes and caselaw.
Today, by contrast, a technologically
savvy lawyer can be a top-notch
appellate attorney without ever
leaving the house. With my personal
computer, cable modem connection
to the Internet, and a subscription
to Westlaw, I can access from
my den at home more legal materials
than I would find on the shelves
of many of the nation's largest
law libraries.
Through an account from PACER
-- the acronym stands for Public
Access to Court Electronic Records
-- I can check the status of
appeals that I am handling in
the U.S. Court of Appeals for
the Third Circuit and in other
federal appellate courts throughout
the nation. The state appellate
courts of Pennsylvania also
now provide online access to
their dockets. The Pennsylvania
Superior Court's online docket
allowed me to learn, several
weeks ago, that the court had
affirmed the judgment in favor
of my client, the plaintiff
in a multi-million-dollar insurance
bad faith case, on the very
same day that the court issued
its unpublished decision. Previously,
I would have had to wait several
days to obtain a copy of the
decision in the mail. Instead,
my client knew of his victory
on appeal the very day it occurred.
Most federal and state appellate
courts now release their newest
precedential opinions on the
Internet each day, and many
of those courts also make available
online their not precedential
decisions. Within the past year,
the Third Circuit has begun
to send email messages to counsel
of record on the day that a
decision issues, and the email
provides an Internet link to
the text of the court's ruling.
Although, in my view, technological
innovations have had an overwhelmingly
positive effect on the practice
of appellate litigation, there
is at least one respect in which
technology may prove more of
a hindrance than a help. Technology
makes it far too easy to take
a brief that failed to win in
the trial court, or that was
barely adequate to achieve victory
there, and turn it into a brief
that will be inadequate to win
on appeal. I have seen too many
lawyers lose on appeal by submitting
essentially the same brief that
they filed in the trial court.
The most pitiful, though frequently
encountered, examples of these
retreads continue to ask the
trial court for a favorable
ruling, even though it is the
appellate court's favorable
ruling that the parties are
now seeking. If you are going
to submit essentially the same
brief on appeal that you submitted
to the trial court, at least
take the time to review and
edit the brief to ensure that
it recognizes that the case
is now pending in an appellate
court.
On the other hand, the benefits
that technology has conferred
on appellate litigation are
almost too many to mention.
Aside from being able to access
decisions and dockets online,
many trial and appellate courts
also provide online access to
pleadings, briefs and oral arguments.
Many federal district courts
are participating in the RACER
system, which stands for Remote
Access to Court Electronic Records.
Courts in the RACER system allow
online access to the contents
of a case file, enabling the
user to read over the Internet
the text of a complaint or brief
that was filed in the trial
court. On May 1, 2002, rules
that allow the electronic filing
of pleadings and briefs took
effect in the U.S. District
Court for the Eastern District
of Pennsylvania.
Several federal appellate courts,
including the Seventh and Eighth
Circuits, provide on their official
Web sites electronic access
to parties' appellate briefs
and to audiotapes of oral arguments.
If I see a Seventh Circuit decision
on an issue of interest to one
of my appellate clients, within
minutes I can be reading and
emailing to others the briefs
filed in that case and be listing
to and emailing to others a
computer file containing the
audiotape of the oral argument.
The Third Circuit's Web site
does not yet provide access
to briefs and oral argument
audiotapes, but I hope that
it soon will. Lawyers who excel
at writing appellate briefs
and at delivering appellate
oral arguments will have nothing
to fear from this development;
meanwhile, everyone else's skill
at appellate litigation will
be revealed for all to see and
hear.
The Third Circuit is on the
cutting-edge of technology when
it comes to enabling its judges
to participate in oral argument.
At a recent en banc oral argument,
Judge Jane R. Roth participated
via teleconference from California,
and other Third Circuit judges
have participated in oral arguments
via teleconference. The Third
Circuit's main courtroom has
been wired with cameras and
video screens to allow the judges
in Philadelphia to interact
with lawyers and even litigants,
such as prisoners, who are arguing
from other locations.
Given how mystifying the appellate
process can seem to many lawyers,
it is not surprising that the
general public understands far
too little about the role of
appellate courts and how they
reach decisions. By making appellate
briefs, oral argument tapes,
and decisions publicly available,
appellate courts will enable
lawyers and the public to understand
better how these courts operate.
And, anyone who is worried that
televising appellate oral arguments
might debase those proceedings
need only watch a telecast of
the en banc Superior Court of
Pennsylvania on the Pennsylvania
Cable Network or the U.S. Court
of Appeals for the Ninth Circuit
on C-SPAN to have that fear
alleviated. To increase public
awareness, one could even begin
writing an Internet Web log
devoted to appellate litigation,
as I have recently done. See
http://appellateblog.blogspot.com/.
What additional change is technology
likely to bring to the practice
of appellate litigation? Effective
December 1, 2002, the Federal
Rules of Appellate Procedure
will allow counsel to agree
to accept service of appellate
briefs electronically. The increasing
use of videotape and audiotape
at trial may allow appellate
courts to see for themselves
if a capital defendant's attorney
truly was asleep during critical
junctures of a trial or to hear
whether a trial judge's tone
of voice in delivering jury
instructions was unfairly prejudicial
to a party.
In my practice, most every deposition
and trial transcript that I
use consists of a computer file
that I can easily search for
key words and phrases. Appellate
courts should demand similar
electronic access to transcripts
and briefs. It is so much easier
and faster to search an eleven-day
transcript by computer for the
single mention of a name than
to find the mention in a paper
copy of the transcript.
The most exciting development
that the future is likely to
bring is the increased use of
CD-ROM briefs on appeal. A single
disc can contain the text of
an appellate brief, the text
of all opinions, statutes and
other authorities cited in the
brief, and the entire reproduced
record or appendix on appeal.
Every citation to a legal authority
contains a hyperlink that, if
the user clicks on it, takes
the user to the text of the
cited authority. Similarly,
every cite to the record contains
a link to the text of the document
or other item cited. If a witness
testified at trial via a videotaped
deposition, the disc can play
the relevant portion of the
videotape as record support.
The most technologically savvy
trial lawyers in the nation
are demanding courtrooms with
computer monitors for the jurors
and the judge to enable documents,
animations and deposition testimony
to be presented. Before too
much longer, I expect to see
appellate courtrooms similarly
outfitted. If an appeal requires
resolving the disputed meaning
of a statute, a contractual
provision, or an earlier court
ruling, the advocates and judges
might find it very useful to
be able to highlight on a video
monitor different portions of
the disputed text to determine
what understanding is the best.
During the past fifteen years,
technology has significantly
changed, and in large measure
improved, the manner in which
appellate lawyers do their job.
And, while the day when appellate
judges and lawyers are replaced
by super-computers programmed
to achieve justice thankfully
remains too far off in the future
to be seriously contemplated,
we should expect that technologically-driven
changes in appellate practice
will continue to occur at a
rapid rate in the years to come.
This
article is reprinted with permission
from the May 13, 2002 issue
of The Legal Intelligencer ©
2002 NLP IP Company.