Archive for July, 2012

Visual Aids at Appellate Oral Argument

Saturday, July 21st, 2012

Yesterday, I spoke at a State Bar of Texas Appellate Section CLE. One of the other speakers, Dallas Court of Appeals Justice Elizabeth Lang-Miers, addressed the use of visual aids at appellate oral argument. Justice Lang-Miers indicated that some attorneys seek to submit charts, diagrams, graphs, time lines, or other visual aids to the court at oral argument. She stated that this practice is not effective appellate advocacy. Specifically, she said that, if an appellate justice is studying your visual aid, the justice cannot devote his/her undivided attention to the arguments you are making.

Instead of submitting visual aids to the court at oral argument, Justice Lang-Miers recommends including them as part of your appellate brief. Then, the justices can familiarize themselves with your visual aid at the same time that they read your brief. Justice Lang-Miers recommends that, if you don’t realize that a visual aid would be helpful until long after you have filed your brief, you should consider filing copies of the visual aid with the court at least a few days before oral argument. That way, the justices won’t be seeing your visual aid for the first time at oral argument . . . and will be able to focus on your appellate argument rather than on your visual aid.

E-Filing Trends in Texas State Courts

Monday, July 16th, 2012

Electronic filing has begun to change the way that lawyers prepare legal briefs and motions. The Dallas County trial courts began accepting electronic filing, also known as e-filing, several years ago. The Dallas Court of Appeals followed suit last year.

Before adoption of e-filing, attorneys, paralegals, and couriers had to jump into their cars and rush to the courthouse or post office to meet filing deadlines. With e-filing, documents can be filed over the internet without anyone ever needing to leave the office. In addition to reducing the stress of a last-minute dash to the courthouse, e-filing saves considerable costs for attorneys by eliminating the need to pay overtime to paralegals or couriers to make the trip. This convenience is a true life-saver for boutique firms, which do not have the manpower available at larger firms.

As more lawyers have begun to file their documents electronically, many judges have recently begun reviewing these documents on iPads and other e-readers. And this allows the judges to prepare for the next day’s court hearings from home, which before the advent of e-filing might have been impractical due to the volume of papers that would need to be lugged back and forth to the courthouse each day. At a recent Dallas Association of Young Lawyers seminar, Dallas Court of Appeals Justice Martin Richter noted that all judges on the court have acquired e-readers. In light of this development, Justice Richter strongly encouraged lawyers at the seminar to format their documents to make them easier to read on an e-reader. Richter explained that this means more than simply converting a paper document into a searchable PDF document.

Tabs sticking out along the right-hand side of paper briefs have long been used to by attorneys to help judges locate particular sections of the brief, and electronic “bookmarks” are the e-brief equivalent of these tabs. Richter advised lawyers that he strongly encourages lawyers to use such bookmarks in e-briefs.

As another example, it was impractical if not impossible for attorneys to attach all legal precedent being cited in a paper document. But, with an e-filed document, it is possible to include hyperlinks directly to the legal precedent. Richter advised lawyers that these hyperlinks can be extremely helpful to judges. As such, a business involved in a heated legal dispute might be wise to make sure that the business’s attorneys are taking full advantage of this opportunity to make favorable legal precedent readily available to the judge.

However, as lawyers began to take advantage of the ability to include bookmarks and hyperlinks in their briefs, a snag in the system became apparent. All Dallas-area courts which accept e-filing require attorneys to utilize one of six approved vendors. And the largest of these vendors, Universal City, Texas-based ProDoc was stripping out all the meticulously crafted bookmarks and hyperlinks before submitting the documents to the courts. After numerous complaints, ProDoc – a subsidiary of Thomson Reuters, the parent company of legal research giant Westlaw – resolved this problem in November.

While e-filing is indeed the wave of the future for the legal industry, Texas state courts have a lot of ground to cover before they catch up with the advanced system in place in federal courts. In the federal courts’ computer system, called PACER, anyone with internet access can view practically any document in any case. In the state system, some counties (such as Dallas) have made most documents available online, while other counties have scanned most documents but require an attorney or paralegal to go the courthouse to access the scanned documents or submit a written request by mail for access to individual documents, which are then mailed a few days later. Other counties have not even begun scanning court documents, instead requiring attorneys or paralegals to literally dig through old boxes of paper to find a needed document.

In the federal courts, there is one system for electronically filing and viewing documents. In the Texas state courts, every county has the option of setting up its own computer system, which requires lawyers with state-wide practices to learn multiple systems. For example, courts in Jefferson County (Beaumont) and Montgomery County (just outside of Houston) require nearly all filings to be made through a single vendor, Ohio-based LexisNexis File & Serve. Dallas County, on the other hand, does not permit filings to be made through that vendor.

Harris County (Houston) courts do permit attorneys to use the same system used in Dallas County. But, due to reported problems with that system, Harris County courts also use a proprietary system not used by any other Texas courts. Under that alternative Harris County method, attorneys must fax their documents to the Harris County computer network rather than upload the documents over the internet.

According to the most recent Texas Office of Court Administration report, e-filing is not available in any form in 203 Texas counties. With 254 counties and 2,600 independent trial courts, standardizing the e-filing process could be a daunting task. But the Texas Supreme Court is currently studying whether all Texas state courts should adopt a standardized system. The Supreme Court conducted a hearing on the issue in December, but has not yet decided the matter.