A modest proposal–buy appellate judges Ipads and stop requiring printed materials on appeal

One of the unanticipated joys of writing this blog has been reading correspondence from readers.  Recently, I received a note from a paralegal working for a Federal Public Defender.

The paralegal suggested the following:

I’m currently a paralegal who is spending some time at a Federal Public Defender office before heading to law school.  . . . 

My current job often involves assisting with appellate submissions. We produce truly massive packets of materials (usually in capital cases), and we print numerous copies of these materials.

At times colleagues have joked that we could buy everyone involved in the process (Judges, clerks, attorneys, heck probably even paralegals) an iPad, load up all the documents and come out ahead financially. Once everyone had an iPad we would really start saving money. At least to me the experience of reading PDFs on an iPad is superior to that of paper. For example, people with difficulty reading small text can zoom in. It’s even possible to place text notes into the documents.

At this time of fiscal crisis in the federal courts, it seems like a massive waste of money and resources to continue submitting appellate materials in the current manner. The courts have adopted electronic filing. Why not divert some printing funds to work iPads?

I was wondering if you’ve heard any rumblings about such an arrangement or if you find this to be a viable change? You seem to be a progressive member of the bench, if not in legal interpretation, at least in openness to technological change.

These types of developments are pretty much inevitable in my opinion—it’s only a matter of time. Why wait when the savings are real and the technology is more than adequate. 

Can’t a perfectly reasonable argument be made that (1) all appellate submissions (record, brief, appendix and motion) should be exclusively digital in nature and (2) appellate judges should stop requiring printed materials of any kind from members of the bar–if they want something printed such as a brief, let them do it themselves. Indeed, many (perhaps most) district judges already read briefs on computer screens, and, when necessary, print the brief (or motion or other part of the record) only as needed.  Sure, that slightly shifts printing and personnel costs from the litigant to the appellate court, but that cost is de minimis.  If printing and personnel costs are truly a problem, increase the filing fee modestly.

Shouldn’t all federal appellate courts, like virtually all their district court counterparts, step fully into the modern age?  So, what do you think?

RGK

19 responses

  1. My son got a compliment in trial the other day when the judge, seeing only an iPad on his desk (when the paper file was 10″ thick) suggested to the state that everything from now on be loaded on an iPad. It speeds everything up, and the links in briefs, with one click, takes you to the case being talked about. It should start out as a request of counsel and eventually be mandatory. Our state Supreme Court requires that digital briefs be submitted simultaneously with hard copies, but by email to the clerk.

  2. Dear Daniel,

    Thank you very much for your note about the Sixth Circuit. I am pleased to know that the Sixth Circuit does not require copies of printed briefs. I hope that rule is also true for the appendix and other materials.

    As for your question, I think it answers itself. There is really no strong reason why other Circuits should not follow the Sixth. But, being a denizen of the TTT of the federal courts, what the hell do I know?

    All the best.

    RGK

    PS I am so proud of myself. I have been wanting to use “TTT” for a long time.

  3. I think the definition of a federal appeals judge is a law student who grades his own paper. Good work on the blog.

  4. I can’t argue with the cost advantage, but I vastly prefer paper for my book reading. I own a Nook and a Kindle, and I can’t flip back and forth in an ebook as easily and as quickly as I can with a hard copy. With the thickness of the book, and the physical dogears (and even without them), I know where what I want in the book is located, to within a few pages. That SA is lost in an ebook.

    I also have a security problem with electronic (only) copies. Once the paper has been printed and delivered, it’s deucedly hard to hack the copies and alter the content. Electronic copies will always be in an arms race between the hackers and hackees, and in the intervals with the hackers in the ascendant, both the defendant and the state will be at risk.

    Color me paranoid, but some things are important enough to justify the paranoia.

    Eric Hines

  5. My only experience is representing Plaintiff’s in Social Security disability appeals in the Sixth and they use the administrative transcript from the District Court level, so there are no additional costs for that either (don’t get me started on the Tenth Circuit, which requires not only many printed briefs but a whole new Joint Appendix with printing costs on the Plaintiff).

    For a somewhat hilarious but also disheartening story on printing costs before the “first tier” of the Federal Courts, check out this article (http://www.aarongreenspan.com/writing/essay.html?id=87). Who is the “fourth tier” of the Federal Courts?

  6. As someone who recently finished clerking on a circuit court of appeals — and who otherwise very much believes in technology and owns an iPad myself — I’ll second that there’s simply no substitute for a printed record in terms of easy of access. While I often use it in conjunction with an electronic copy for searching, the printed copy can’t be beat for reference and in particular for annotation. Requiring the court to print all of this out is a huge shift of expenses to already-overburdened budgets (though would lessen the cost of shipping records out to far-flung circuit judges). I also note that, from anecdotal observation, it seems that judges who use electronic (iPad) bench packets tend to have a bit more difficulty finding things.

    It’s worth noting, however, that a not-insignificant (if shrinking) minority of judges are simply not capable of handling the technological revolution. As long as they’re around, any moves for change are simply DOA, however normatively desirable. Further, circuit judges are not alone in this luddite nature — many district judges require a courtesy copy from the litigants. In any event, at least none of these courts have the really expensive binding and paper requirements of the Supreme Court’s booklet printing system. There’s a real and legitimate target for ire…

  7. Most of the cost of paper filings are borne by the parties. The cost of an iPad, though cheaper in the long run, would come out of the court’s budget.

  8. Dear le_taon,

    Several observations about your insightful comments.

    First, we all will remain Luddites until we are forced to do otherwise. For those older judges (like me) who want copies, let their judicial assistants or law clerks hit “print.” (That is very easy.)

    Second, as to cost-shifting, I don’t see that as much of an excuse. At least some judges and law clerks are not likely to print every brief or appendix whereas if you require an arbitrary number of copies to be printed by lawyers, the default results in tremendous waste because many judges and law clerks simply won’t use the copies. (Tell me the truth, how many copies of briefs got pitched in your chambers each year?) If cost shifting is really an issue, increase the filing fee modestly to cover the real costs. Even then, there would be a tremendous savings to the lawyers and litigants for whom we serve.

    Third, I too was clerk on a federal appellate court (many years ago) and I have sat on our Court of Appeals several times since then. I fully understand that paper can be convenient, but what is the price of convenience? Digital gadgets will now allow you make margin notes, and bookmark all sorts of things in roughly the same manner as you could with paper. In fact, some of the newer gadgets will allow you to make “handwritten” notes. Paper might be slightly more convenient to some of the judges and clerks in some cases, but certainly not in all (or probably even in most) cases.

    Fourth, just because some idiotic district judge requires “courtesy” copies does not mean that anyone else should follow that stupid idea.

    Finally, the Supreme Court’s printing requirements are an embarrassment, but there is precious little than can be done by you and me about the Justices. We sure as hell should not emulate those folks. We can, however, influence the Circuit Courts. If the Sixth Circuit has dropped the printed copy requirements as suggested by another commentator, the nose of the camel is now under the tent. All us should be jabbing the animal in the rear to hit the other tents.

    Thanks for taking the time to write. All the best.

    RGK

  9. I clerked, for year each, on a federal district and appellate court. Like you, I enjoyed having the paper briefs to flip through at the court of appeals. However, once I entered practice, I realized the practical effect of the printing requirements — young lawyers spend hours, and clients spend thousands of dollars, obsessing over whether every detail of the court’s local rules have been complied with (does the hard copy have to be hand signed, or do you print out the e-signature page? comb-bound or flat-bound? uh oh, the copy center forgot to put the right color separator pages between different items in the J.A.!). This is stupid, and also unfairly biased against litigants who can’t afford giant law firms. I can’t imagine trying to organize filings like this in a solo law office or nonprofit.

    There is no reason why court of appeals clerks can’t fire up the printer and produce a brief on demand for themselves or their judge, just as we did on district court (I think my DJ required a courtesy copy for really voluminous attachments, like with a SJ motion, but not filings). Since the vast majority of cases are unargued, there is certainly no need for four briefs to be filed in every case (on my circuit, each judge saw the same brief, as the packet was forwarded from chambers to chambers, unless the case was actually set for argument).

    As for the record, my circuit had already mostly adopted electronic records (for internal use) by the time I was there 6 years ago. If you were actually responsible for an opinion in a case, you could request the hard-copy record (with exhibits, etc) from circuit HQ, but it usually wasn’t necessary to get everything.

  10. …whether every detail of the court’s local rules have been complied with….

    This strikes me as an argument for standardizing such administrivia across Federal courts (and within each State’s courts, but that’s a different matter), or at least within individual appelate circuits more than an argument for electronic copies of everything.

    After all, the electronic copies will have to satisfy the (local) rules, too.

    Eric Hines

  11. I certainly don’t disagree that more standardization of local rules would be desirable (although a lot of appellate courts have actually made their rules more litigant-friendly than the FRAP — for example, FRAP 31(b) absurdly requires that litigants file 25(!) copies of their briefs, which most courts I know of reduce to 4; also some courts make the J.A. requirements less onerous).

    But I still think the printing side of things could be eliminated altogether, whether local or national rules are at play. Even if there were uniform rules, having to print and bind things still introduces a lot of opportunities to screw things up, to little real advantage.

  12. Dear Jay,

    Thanks for your comment. Given your unique experience, I find your comments particularly persuasive.

    All the best.

    RGK

  13. Call me paranoid, there is another reason for submission by paper, as many as 10, 15, even 20 copies of briefs or petitions. Its called scaring away the appeals. The minute a record and briefs become purely electronic, everyone and their grandma constantly will be filing appeals.

  14. Interesting point, although I don’t think appeals would grow that much except, perhaps, for pro se appeals. Pro se appeals are typically handled administratively, so I don’t see much of an impact. Thanks for your comment.

    All the best.

    RGK

  15. People have a right to appeal. I’m not sure that we should maintain onerous filing rules solely for the purpose of making that right difficult to assert. To paraphrase Douglas Adams, we could also require notices of appeal to be filed in a disused lavatory in the basement of the courthouse with a sign on the door saying “Beware of the Leopard.” That would probably cut down on appeals too.

  16. Here in IL, you have one paper record copy and then X numbers of briefs. There are other hoops if you go to the IL S.Ct. if the court is not in session, such as sending copies to all the justices’ local offices. Many a client (and I) have been scared away by financial / time costs of filing an appeal with respect to something that should have been appealed. Moreover, there is no question trial court judges are aware of the time / cost issues involved in appeals, and count on that fact when making many rulings. Even pitched foes and I have agreed some trial court judges use the situation to alternate unfavorable rulings to get the case off the docket.

  17. There is very little justification in my opinion for the refusal to make appeals cheaper, faster and easier by adopting electronic filing systems. An aggressive campaign the bar could change those things.

    All the best.

    RGK

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