E-Filing in State and Federal Appellate CourtsD. Todd Smithwww.appealsplus.com

June 23, 2011

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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Topics We’ll Cover

• The paper in your materials appears in this month’s Texas Bar Journal

• Its purpose and the goal of this talk are to provide an overview of recent developments

• In the time we have today, we’ll address these questions– What is appellate e-filing?– Why e-file in appellate courts?– Where is appellate e-filing permitted (or required)?– How do you e-file in those courts?– Where is all this heading?

• I’ll also identify some comprehensive “how to” resources (linked within slides)

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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What Is Appellate E-Filing?

• Electronic submission of briefs or motions to appellate court for decision and action

• Sufficient to satisfy deadlines and join the issues, even follow-up paper copies are required

• What it’s not: – “E-copies” are electronic copies of brief tendered for the court’s

convenience and internal use– Many courts have accepted e-copies for some time– But true electronic filing of appellate papers is relatively new

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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Why File Electronically?

• If the court requires it• You’re a trial lawyer and have been e-filing for years• You aspire to a paperless practice• You want to “trick out” briefs with hyperlinks, video, etc.• To gain a few extra hours—why drop hard copies in the

mail when you can hit “send” until midnight?• E-filing may also constitute service on opposing counsel• Judges are starting to rely on electronic versions, which

can help them be more efficient• Things are trending this way, so you might as well start

learning now

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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Why Think Twice?

• Some additional cost in state court (for now)• Creating the document and submitting it online requires a

certain level of technological proficiency• Some duplication of work (for now) because appellate

courts still require paper• One of the bigger concerns is handling of personal and

confidential information (K. Gray)• Regardless, the trend is to require electronic copies in

addition to paper, so anyone handling appeals needs to master the process of preparing and submitting electronic documents to the courts

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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Where Can You E-File?

• 5th Circuit—mandatory as of March 2010• Texas Supreme Court (but not the CCA yet)• Intermediate state courts of appeals—1st, 3rd, 5th & 14th

are live; 11th says it’s coming online soon• State-court appellate e-filing, where available, is entirely

optional at this point• SCOTUS requires e-copies of merits briefs, but hasn’t

moved to e-filing yet

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File?

• An electronically filed brief is essentially an image of a paper brief– But the trend toward screen reading has commentators talking

about how to tailor briefs to that medium (R. Dubose)– Pay attention to that and to typography (M. Butterick)

• With those caveats, mechanically, prepare the document as you otherwise would

• When finalized and ready to file, generate a searchable PDF version from your desktop

• Along with redaction, biggest challenge for new users is that simply printing and scanning a brief is not allowed

• Early adopter or not, it’s critical to become familiar with the special rules adopted by courts accepting e-filing

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File? Generating the Brief

• The most common word processing software packages allow you to convert a document to PDF using “save as” or “publish” features

• In state court, an electronic service provider may convert the document for you

• Best overall solution is to use software specifically designed to handle PDFs, such as Adobe Acrobat

• Some of these (i.e., Acrobat Professional) have sophisticated redaction and page-numbering tools

• Advanced users may choose to hyperlink documents in the brief (Hawthorne & Cruse)

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File? Documents From Record

• 5th Circuit and state briefing rules require an appendix or record excerpts

• These can be scanned if necessary, but must be made word-searchable using OCR software (Adobe Acrobat Standard will do)

• State-court rules require that appendix be attached to brief and bookmarked by document

• Making record documents searchable and bookmarking them increases usability and helps judges do their jobs

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File? 5th Circuit Procedure

• Relevant rule is 5th Cir. R. 25.2, but separate ECF Filing Standards are the key

• CM/ECF system similar to district and bankruptcy courts– Linked on front page of court’s website, www.ca5.uscourts.gov – Ready access to helpful reference and training materials

• Counsel or designee must register and complete training modules that simulate e-filing

• Must have filed a form for entry of appearance in that specific case

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File? 5th Circuit Procedure

• Interface is a little clunky because it’s built on an older platform, but it’s functional, and filing is free

• Those comfortable with ECF filing in lower courts should have no problem

• The flaw in this system is that paper copies are still required

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File? State Court Procedure

• Relevant rules are amended TRAP 9.2 and 9.3, which technically become effective June 30– New TRAPs authorize the 16 Texas appellate courts to adopt

rules permitting or requiring e-filing or e-copies– SCOTX has promulgated templates and has adopted rules

(linked at www.supreme.courts.state.tx.us)

• System is built on www.texas.gov and has the same basic setup as trial-court e-filing– Must submit documents through third-party electronic service

provider, such as ProDoc or CaseFileXPress– ESPs offer training for their own systems– Can pay filing fees through ESP accounts

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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How Do You E-File? State Court Procedure

• Some ESPs weren’t ready to go on rollout, but should have caught up by now

• If you’re used to and happy with a certain provider, the process should be seamless

• Downsides are “per use” cost and continued reliance on paper copies

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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Where Is All This Headed?

• Ultimately, appellate courts have to emulate the trial court e-filing model and let go of paper altogether

• Otherwise, the promise of e-filing won’t be realized• For federal courts, ECF and PACER are well developed

and stable, even if old; the rules need to catch up• In state courts, some developments to watch for

6/23/2011 Copyright © 2011 Smith Law Group, P.C.

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Where Is All This Headed?

• Texas Appeals Management and E-Filing System (TAMES) currently in development– Will build upon e-filing and make dockets and documents

available for online viewing, similar to what ECF/PACER do now– Will replace U.S. mail as the courts’ official notification system

• The buzz is that e-filing will become mandatory in state court appeals when TAMES goes live

• A statewide, unified system for e-filing and online court record access is being considered– Judicial Conference on Information Technology and Texas Office

of Court Administration are studying this issue– Efforts to create funding for such a system through legislative

mandate, generally through court filing fees, have been sidetracked by budget crisis

E-Filing in State and Federal Appellate CourtsD. Todd Smithwww.appealsplus.com

June 23, 2011