TrueFiling comes to the Second District Court of Appeal

Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin place for several years, it appears to be the last appellate court in the state to embrace e-filing of everything via TrueFiling.

With the upgrade come some new formatting requirements that were previously only suggestions. Electronically filed documents must now include electronic bookmarks to “to each heading, subheading and component of the document, such as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and proof of service.”

The full rules area available in the Electronic Formatting Requirements and Guidelines of the Second District (the “rules”). As the name suggests, some things are mandatory, others are not. The rules include a “style manual” of sorts with recommendations for fonts, margins, line spacing, and text alignment, among other things. Curiously, some of these guidelines advise noncompliance with the rules of court. For example, rule 8.204(b)(5) states that “lines of text must be unnumbered and at least one-and-a-half-spaced,” but paragraph 8 of the guidelines suggests line spacing of 1.2 lines. My guess is that 99.9% of people aren’t going to care about these differences, but they will drive the other 0.1% nuts.

Use of TrueFiling becomes mandatory in the second district on October 30, 2017.

Mandatory e-filing in the California Supreme Court is imminent – learn the rules!

image courtesy of clker.com

The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be rather user-friendly.

The Supreme Court’s e-filing rules are available in PDF format on the court’s website, and they are extensive. Some highlights: [Added 9/6/17: do not rely on this summary to ensure your compliance with the rules. Reference the rules on the court’s website, which may change form time to time without such changes being noted in this blog post.]

♦E-filing becomes mandatory on September 1, 2017, even for cases initiated prior to that date. (Rule 3(b).)

♦As in many other courts, self-represented litigants are exempted from mandatory e-filing. (Rule 4(a)(1).) But attorneys may also seek an exemption. (Rules 3(a), 6.) I am hard-pressed, though, to imagine how an attorney would meet one of the stated grounds for exemption: undue hardship, significant prejudice, or infeasibility. (Rule 6(b).) Perhaps the unavailability of a broadband internet connection would render e-filing infeasible?

♦[Added 9/6/17: the rules for paper copies have already been modified. See the 9/6/17 update below.] Two bound paper copies of documents must still be provided in civil and non-death penalty cases, and quite promptly (sent by means reasonably calculated to reach the court by the close of business the second court day after the electronic filing, and only one day after filing in cases requesting an immediate stay). (Rule 5(a).) That is a disappointment, but there is still far less paper to handle than there is with paper filings. In a death penalty case, the filer only has to send in one paper copy, has more time to send it, and does not have to bind it. (Rule 5(b).)

♦PDF documents must have bookmarks to separate sections, argumentative headings, etc. (Rule 10(a)(3).) Though the rules do not appear to require it, it is probably a good idea to format each heading in your table of contents with a hyperlink to the corresponding page in the document, as the Fifth District Court of Appeal requires.

I find the rules ambiguous in one respect. Rule 3(a)(1) lists one category of documents that must be filed electronically:

Documents in proceedings under rules 8.500-8.552 [of the California Rules of Court]
All documents filed before the court issues its decision to grant or deny review, including:

[enumerated documents]

(Italics in original, bold added.) Even though rules 8.500-8.552 of the California Rules of Court cover proceedings subsequent to a grant of review and all the way through issuance of the remittitur, Rule 3(a)(1) appears to require electronic filing only for the documents filed prior to the grant of review. Under this strict reading of the rules, briefs on the merits do not appear subject to mandatory e-filing, which seems like an odd omission. Why reference all of those rules if e-filing is mandatory for documents filed pursuant to only some of them? It is important to resolve the ambiguity, because a filer may electronically file only those documents specifically identified in the rules (Rule 2), unless otherwise ordered by the court (Rule 3(a)(3)). In other words, e-filing is either mandatory or prohibited for a given document. Perhaps there is a standing order that covers this under Rule 3(a)(3), but it seems odd not to make it explicit in the e-filing rules themselves. [Added 8/21/17: briefs on the merits and other post-grant filings appear to be deliberately omitted from e-filing. See the update below.]

Regular readers know I am not a fan of reading legal documents on a screen. But e-filing sure makes filing easier, and also makes it easier to keep my office organized.

Still, electronic filing could be improved by some uniformity. Some is on the way, such as the anticipation that all districts of the Court of Appeal will have e-filing through TrueFiling implemented by November of this year. It could also be improved be eliminating the need for any paper copies, including copies served on subordinate courts. E-filing in the Court of Appeal has long satisfied the requirement of service on the Supreme Court, and the uniform use of TrueFiling this November should make it possible to e-serve any Court of Appeal with documents e-filed in the Supreme Court. Electronic service on superior courts statewide would be nice. Electronic service on subordinate courts would be even nicer if it happened automatically upon e-filing in the filing court.

Update (8/21/17): The ambiguity regarding post-grant documents kept gnawing at me, so I asked a few colleagues what they thought, which led me to last June’s news release about the Supreme Court’s adoption of e-filing. It says in part:

The court will adopt detailed eFiling Rules in June and remain open to opportunities to enhance the program in the coming year. The court will employ a phased approach to the launch of its eFiling program.

That suggests this is a “grow as we go” implementation, and that my reading is correct: for now, briefs on the merits and other post-grant documents, as well as documents in writ proceedings, cannot be e-filed.  They may be submitted electronically, but the electronic submission is in addition to required paper filing copies, not a substitute for them.

Update (9/6/17): Some of the rules have already been modified. Notably, the requirements for submitting paper copies (Rule 5) have been relaxed.  Whether a death penalty case or not, only a single, unbound paper copy is required, and it need no longer reach the court within two court days; depositing the copy in the mail or with a common carrier within two court days of filing now suffices, unless the filing party is seeking a stay, in which case the paper copy must reach the court “by the close of business the next court day after the document is filed electronically.”

There may have been other changes, but I do not have the original version of the rules against which to check the current version. As always,. rely on the official rules, not the commentary in this blog post.

How flexible is that midnight electronic filing deadline in federal court?

The witching hour approaches (Image courtesy of publicdomainpictures.net)

When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise words.

Last week I posted about a party that applied for a 15-minute extension of time to file its documents with the federal district court in Ohio because of some technical difficulties it encountered with the electronic filing. In doing so, it lived out the first half of my mentor’s adage, as it did not assume that it would get a break of even 15 minutes without explicitly requesting such relief.

In Hyperphrase Technologies, LLC, et al. v. Microsoft Corporation, a patent infringement case in a Wisconsin federal district court, Microsoft electronically filed its summary judgment motion about 4-1/2 minutes after the midnight deadline, and did not complete uploading the supporting papers until 1:11 in the morning. Microsoft did not ask for an extension, thus ignoring the rule to “practice law as if the rules will always be strictly enforced against you.”

Hyperphrase moved to strike Microsoft’s summary judgment motion as untimely. The magistrate judge had great fun in his order denying the motion to strike:

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, [listed by name], promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

I’m hardly the first blogger to note this 14-year-old order, and many people have no doubt gotten a good laugh from it. Allow me to be a killjoy and inject some seriousness.

At first glance, it might appear that Hyperphrase ignored the rule to “practice law as if the rules . . . will never be strictly enforced against the adverse party.” But did it?  This adage does not mean that a lawyer should ignore rules infractions by the other side, only that a lawyer should weigh the seriousness of the infraction within the context of the case before committing the client’s money to an effort to make the adverse party pay a price for that infraction.

I suspect Hyperphrase’s lawyers made that analysis, and the decision to move to strike was carefully considered rather than a reflex reaction. This was a patent infringement action against Microsoft targeting two of Microsoft’s flagship products, Word and Excel. There had to be many millions, perhaps hundreds of millions of dollars, at stake. Would you not at least be tempted to move to strike the summary judgment motion as untimely? Would you let the risk of looking silly stop you from taking every conceivable step to get the case in front of a jury? And even if you were reluctant to move to strike, how do you think your client, with many millions of dollars on the line, would react to you saying you would not move to strike the motion because you did not want to look petty? Maybe the magistrate judge had a reputation for being a stickler on timeliness. Finally, maybe Hyperphrase’s attorneys believed the motion would be impossible to beat on the merits and saw the motion to strike as the only reasonable shot at derailing it. (The district judge granted the motion.)

Consider also this occurred in 2003, when electronic filing was relatively new. (I don’t believe mandatory electronic filing was in place in California until a few years later.) With little or no history to go on, who knew how strictly the midnight deadline would be enforced? If one hour and eleven minutes past midnight is OK, how about 2 a.m.? 3 a.m.? The judge is almost certainly still in bed at those times, and the courthouse is still hours from opening. At what point is tardiness inexcusable?

There are judges who take untimely filing, even by a matter of minutes, seriously. Since you never know how your judge will view it, perhaps the safe course is to ask for an extension when your filing will be even a few minutes late and to move to strike anything of significance filed late, even if it is just by a few minutes.

If you have experience with missed electronic filing deadlines (in either federal or state court) in the early morning hours, please share your story in the comments.

The 15-minute filing extension, brought to you by the era of midnight electronic filing deadlines

The witching hour approaches (image courtesy of publicdomainpictures.net)

When I was in law school, my wife was an assistant to a department head in an environmental consulting firm. Frequently, when I asked her what kind of day she’d had at work, she would respond that the scientists had made her day nuts by working on a project proposal at the last minute, forcing  the support staff to scramble like mad to make the FedEx deadline (usually 5 p.m. for those of us on the west coast). After hearing this a lot, I asked — with great naivete — “Has anyone ever considered getting the project done before the last minute?”

Then I got to my Big Law firm, and saw that a lot of the work product going out the door faced the same last-minute rush. I remember conference calls with co-counsel and/or clients suggesting competing changes to drafts an hour before they had to be sent electronically to another office, where they would be printed for filing (this was the early 90s, long before electronic filing).

With mandatory electronic filing in federal courts (and some state courts), lawyers now have the “luxury” of midnight filing deadlines, which means, naturally, that many lawyers are now working up to a few minutes before midnight on their filings. Sometimes it’s procrastination, other times perfectionism, but I doubt it is uncommon.

Which brings me to the request for the 15-minute filing extension, filed just after midnight by attorneys suffering technical difficulties with their electronic filing. In granting the extension, the court  asks “Why are we waiting until the eleventh hour?” and describes filing practices employed “in the old days” (which, in terms of technology in law offices, really weren’t that long ago). The 1-1/2 page order is well worth a read.

Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warning (at least not directly).

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

Will appeals lawyers be replaced by computers?

San Diego Comic Con SDCC 2016 Cosplay

Will your future lawyer be a computer? A robot?
V Threepio via Compfight

Technology has been displacing low-wage and less-skilled workers for a long time. Is it time for white collar professionals – including lawyers – to fear they are next?

At  The American Interest blog: “Venture capital money keeps flowing to promising new tech companies that are working to automate many of the routine tasks conducted highly-paid 20-somethings at big city corporate law firms.” After noting that professionals may soon feel the squeeze from technology that low-wage workers have long endured, the pot continues, “Big law firms are especially overdue for disruption … The next stage of the information revolution may end up looking more egalitarian than the last.”

I sense a little hostility there, but maybe I’m just being defensive.

That post links to this article at Bloomberg, about a new start-up:

Could the armies of lawyers needed to close billion-dollar deals soon be a thing of the past?
That’s what Invoke Capital, the London-based venture firm run by former Autonomy Plc Chief Executive Officer Mike Lynch, is betting with its latest project financing. Invoke said Wednesday that it’s making an investment in Luminance, a U.K. startup using artificial intelligence to process legal documents and automate due diligence in mergers and acquisitions.

Well, that’s a relief! They’re just gunning for M & A work. For now. But if you use computerized legal research services like Lexis or Westlaw, ask yourself: is it all that hard to imagine those services advancing to where, armed with facts provided by an online form,  they can take over the research completely, and maybe put the results together into a cohesive argument? Wouldn’t the ultimate end be there would be no more argument, but instead only one correct legal result arrived at by a computer? Even appellate justices would not be safe.

I think there are a few things standing in the way of that end. People would not accept it because they would not trust the programmers. But the biggest obstacle? Teaching a computer how to apply the “abuse of discretion” standard of review.

Second District Court of Appeal to implement TrueFiling e-filing system in late 2016

Screen Shot 2015-08-20 at 11.46.15 AMAccording to a notice I received today from the California Appellate Project:

The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district.  The choice of which to use will be yours.  Then, in January, the present eFiling system will disappear, and everyone will be required to use True Filing.  Those of you already working in other districts with True Filing will definitely have a leg up on the rest of us.

That last sentence is certainly true. TrueFiling takes some getting used to.

The Second District’s present e-filing system has the advantage of being free, but it is also not a pure e-filing system. Hard copies of briefs still had to be submitted to the court. Also, original proceedings (writ petitions) cannot be initiated electronically under the current system, but I have initiated original proceedings via True-Filing in other districts.

You can’t stop progress. But I still hope the justices print out my briefs before reading them.

Update (09/25/2017): From the “better late than never” department. TrueFiling becomes mandatory in the Second District Court of Appeal on October 30, 2017. I shouldn’t joke. The Second District has always generously granted me extensions, it’s about time the court got one.

Does Internet technology influence the way lawyers and judges think? Should it?

The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age:

A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in the essential skills of “thinking like a lawyer.” The traditional techniques that have been taught by legal research and writing professors, and their doctrinal counterparts, must remain an essential part of our legal education system. Appellate jurisprudence in the Internet age is the same as it has always been. Whether one uses the Internet or a treatise to find legal information, the analytical skills necessary to determine relevant precedent remains the most important skill for a lawyer in the Internet age.

Whiteman notes that worries about how availability to ever-larger amounts of legal information might corrupt jurisprudence are nothing new: “The truth is that commentators have been worried about the explosion of legal information and the effects this has had on legal research and jurisprudence for close to two centuries,” (emphasis added, footnote omitted), noting that in 1821, Justice Story lamented that too many young lawyers were relying on treatises instead of actual legal opinions of the courts. Making a similar argument regarding today’s technology-driven growth in the availability of legal information merely continues a “time-honored tradition”:

Several commentators have criticized electronic research and its effects on the research abilities of law students, lawyers, and judges. While there is probably some truth in these criticisms, they reflect a continuation of the time-honored tradition of criticizing the research skills of law students and newly minted attorneys. The one constant that remains is that regardless of the tools used to perform legal research, law students must gain a deep foundation of “thinking like a lawyer.” Thinking like a lawyer encompasses the analytical skills that form the basis for “good” lawyering which will allow law students (and future lawyers) to uncover and utilize the basic building blocks of each jurisdiction’s jurisprudence.

(Footnotes omitted.)

I have not read the entire paper, but the conclusions stated in the abstract and the excerpt above match my intuition. As my prior writing on electronic briefs and laptops may indicate, I think too many people of all stripes, not just lawyers, expect technological tools to revolutionize substantive thought or to improve thinking rather than merely change the way we access, store, or review information. Technology allows us to find relevant information incredibly fast (and makes it tempting to ignore the age-old rule to always read the entire case before relying on it as authority). But once we access the information, we must still rely on our good sense and proven analytical methods.

Thanks to the Legal Writing Institute and the Social Science Research Network for making this paper available. Of course, if you’re still down on technology, you may instead regret that these organizations continue to contribute to what you see as a glut of legal writing! From me, however, they get a “thank you.”

Some technical help for e-filing in the Court of Appeal

Screen Shot 2015-08-20 at 11.46.15 AMThis week, the Second District Court of Appeal published a terrific guide for creating electronic documents. (PDF link) The guide is broken down into a section on briefs and a section on appendices, and is meant as a technical guide, not a set of rules for filing. It is thus helpful regardless of the district your appeal is in.

The guide provides the nitty-gritty detailed steps, with illustrations, for creating, editing, and formatting documents for electronic filing, including instructions for safely and securely redacting information, adding bookmarks, and making scanned documents text-searchable, among other things. Unfortunately, instructions on hyperlinking have been deferred to a future edition.

I wouldn’t quite call it Electronic Filing for Dummies, though it will be helpful even for those who don’t know a PDF from a DOC and think Adobe Acrobat is a circus performer. I consider myself pretty tech-savvy on PDF creation and manipulation, and I still learned from it.

I think the guide will be particularly helpful for solos, who don’t always have the staff to handle the tech side of things and must rely on a DYI approach. However, the use of Adobe Acrobat, the PDF application used in the guide, can be cost-prohibitive for solos on a budget (though I believe it is now available through a monthly subscription). Keep in mind that there are alternative, less expensive PDF applications that can probably do everything you need for electronic filing, including PDF Pen for the Mac and Nitro Pro for the PC. (I have used both, but I am not endorsing either of them. Both offer free trials, so you can be sure they do what you need before purchasing.) I use Acrobat now because it came free with my Fujitsu ScanSnap scanner (an awesome piece of hardware).

Don’t forget that e-filing practices are not uniform throughout the state. Always check the particular procedures for your district. But this guide should help you no matter where you practice.

A hat tip to H. Thomas Watson of Horwitz & Levy for getting word of this out through the L. A. County Bar Association Appellate Courts Section listserv.

Apparently, the law library of the future is going to be one big Kindle

The Journal of the Legal Writing Institute has just published a short essay by Professor Ronald E. Wheeler of Suffolk University Law School, titled “Is This the Law Library or an Episode of the Jetsons?

The big takeaway: the library is going to resemble a super-advanced Kindle and its patrons will look like they are parts of the Borg Collective:

It will include technologies that we know about and technologies that are beyond our imaginations. Things like retinal and holographic displays are predicted to be in use in the next 5 to 10 years. Lawyers, law professors, and other law library patrons will be browsing touchable, holographic shelves to select volumes instead of walking through the stacks of physical libraries. Intelligent,robotic, personal assistants will be providing clerical and other kinds of support to library researchers. Law library patrons won’t carry around smartphones or tablets. Instead they will work on skin-embedded screens with fingernail displays, brain mapping, brain uploading, and DNA storage.

I encourage you to click the article title above to read Professor Wheeler’s view about what this technology means for how we must adapt our teaching, practicing, and researching of the law. Some, he notes, will have to overcome their thinking that electronic resources are less “scholarly” than print resources.

I will admit to some trepidation over technology, including the use of electronic briefs in appeals and the use of laptops in classrooms, but I’m no Luddite. I have concerns about how technology, or at least the misuse of technology, might undermine legal practice and scholarship. Still, I must admit that a general resistance to change and plain old nostalgia influence my thinking. Will today’s younger generation, seemingly so eager to embrace change, have the same nostalgia for their own “good old days” technology? Even the lawyers trained on the technology Professor Wheeler describes might lament the more advanced, “newfangled” technology that displaces the technology they used at the beginnings of their careers.

By the way, I stole that Kindle joke from an exceptionally funny Portlandia skit. Since it’s Friday afternoon, and we probably all deserve a laugh, here it is:

Have a nice weekend, everyone.

Federal Judge: Appellate Judges Know Nothing About Tech

Joel Spector ⓒ2013

Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit.

The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”).

Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may be reviewed on appeal from a final judgment (which I suspect is a somewhat are occurrence) or by mandamus, which is discretionary. Thus, federal appellate courts are unlikely to see many discovery cases at all, let alone cases involving disputes over ESI discovery. If federal appellate judges are unfamiliar with the technology, it is probably because it rarely comes into play before them.

My blog post on reading briefs from a screen is now an article (and welcome, Citations readers!)

Your humble appellate blogger working on his next article

A special welcome to anyone arriving here after reading my article in the June issue of Citations, the Ventura County Bar Association’s monthly publication. Maybe “iPad Judges” are Not Such a Good Idea is my adaptation of my post last month of the same name, citing studies showing that readers tend to comprehend and retain material better when reading from paper than from a screen. (The article is also scheduled to run this month in the Appellate Law Journal from Counsel Press.)

I’ve since posted some comments on a related issue: whether laptops help or hurt students in the classroom.

It is about time I get back to blogging about the law. Don’t be a stranger!

(By the way, if you still have your paper copy of Citations, make sure you check out the back cover. [No, it’s not about me.])

Does classroom laptop use inhibit law school learning?

A few weeks ago, I wrote about whether it was a good idea for judges to read appellate briefs on iPads or other screens, pointing out studies regarding decreased comprehension and retention reading from a screen compared to reading from paper. Thus, it does not surprise me at all that use of laptops in classrooms (especially law school classrooms) has some serious implications for learning. Take a look at this abstract of The Dynamics of the Contemporary Law School Classroom: Looking at Laptops Through a Learning Style Lens, by Regent University law professor Eric A. DeGroff:

The Millennial Generation is at ease with modern technology and with juggling multiple tasks. Many of them, however, come to law school less prepared in other ways for the rigor of legal education. Their learning styles, visual orientation, short attention spans, and previous learning experiences make them less suited for the focused and reflective thinking that are critical to learning legal analysis and linear reasoning. Research strongly suggests that some learning styles are more compatible than others with the discipline of analytical thinking and the demands of legal education. Students with learning styles less compatible with law school expectations face significant challenges even under the best of circumstances. This article suggests that the use of laptops in the classroom may exacerbate the challenges these students already face.

The article addresses the laptop issue in the context of learning styles and the dynamics of the learning process. It briefly discusses the history of the laptop issue, traces a significant body of research over the last several decades documenting the distracting effect of laptops even when used in connection with classroom activities, and presents the results of the author’s experimentation with a no-laptop policy in his first-year Property course. The author does not suggest removing laptops from the law school experience entirely, but recommends that professors of first-year doctrinal courses consider the adoption of a no-laptop policy for their classes.

When I saw that abstract in my Social Science Research Network email update, I was reminded of a Washington Post article I read more than five years ago: “Wide Web of diversions gets laptops evicted from lecture halls.” The article noted that some professors (including law school professors) had banned laptops from their classrooms, mostly because of the diversions that WiFi access created:

Wireless Internet connections tempt students away from note-typing to e-mail, blogs, YouTube videos, sports scores, even online gaming — all the diversions of a home computer beamed into the classroom to compete with the professor for the student’s attention.

“This is like putting on every student’s desk, when you walk into class, five different magazines, several television shows, some shopping opportunities and a phone, and saying, ‘Look, if your mind wanders, feel free to pick any of these up and go with it,’ ” [Georgetown law professor David] Cole said.

As readers of my “iPad judges” post may suspect, though, I think the problem goes far beyond the diversions presented by a WiFi-enabled laptop. As the abstract to Professor DeGroff’s article points out, the technology generation may be arriving at law school with shorter attention spans, suggesting that the technology created problems long before the students ever arrived on campus. But where I think the WaPo article really hits the nail on the head is with this observation (my emphasis):

Cole has banned laptops from his classes, compelling students to take notes the way their parents did: on paper.

***

Cole surveyed one of his Georgetown classes anonymously after six weeks of laptop-free lectures. Four-fifths said they were more engaged in class discussion. Ninety-five percent admitted that they had used their laptops for “purposes other than taking notes.”

Even when used as glorified typewriters, laptops can turn students into witless stenographers, typing a lecture verbatim without listening or understanding.

I did quite well in law school, and I remember going minutes at a time in classes without writing anything down, because I realized the value of the class was in the give-and-take of the “Socratic Method” dialog that I so relished (yet so many of my classmates loathed and feared).* After some meaningful dialog, I was able to distill key points and limit my notes accordingly.

In other words, I actually thought during class. I hope students are still doing that.

_______________________________

*Not everyone is enamored of the Socratic Method.

DigitalDemocracy.org: an experiment in legislative transparency

Imagine if you could go to a website, type in a term, and find every mention of that term in hearings in the California legislature . . . and not only that, but have the site take you directly to video of the hearing with a rolling transcript and information on legislators and lobbyists. That would be pretty cool, right?

One-week old DigitalDemocracy.org does that:

Try it out! I searched for “vape” to find testimony and argument regarding proposed regulation of e-cigarettes, and turned up testimony from representatives of the Smoke-Free Alternative Trade Association and Mount Sinai School of Medicine . . . plus argument from a bunch of dang politicians.

Speaking of dang politicians, the project was spearhead by partners from opposite sides of the political aisle: Democrat Lieutenant Governor Gavin Newsom and Republican former state Senator Sam Blakeslee.

Don’t get too excited that this will revolutionize your research of legislative history, though. At least, not yet. As of now, the site is only a one-year beta covering only the 2015 legislative year.

Besides, the ability to search legislative history doesn’t seem to be the point. The purpose seems to be to make government more transparent and to give ordinary citizens a window into the legislative process that will allow them to act on issues currently under consideration. (Recent coverage in my local paper includes this article and this column from the paper’s Sacramento correspondent, which give one a feel for the purpose of the project.)

However, if DigitalDemocracy.org carries on past its one-year beta period and maintains its full catalog, I think it will become a valuable tool for legislative history research. It does, after all, also catalog reports, analyses, and drafts of bills (example here) that are available from official sites like Official California Legislative Information or California Legislative Information. The hearing videos and transcripts make those official sites seem awfully dry.

Maybe “iPad Judges” aren’t such a good idea?

I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are reading briefs and reviewing appellate records on iPads and other electronic devices.

The issue was brought to mind today by a lively exchange on the Los Angeles County Bar Association listserv for the Appellate Courts Section. The discussion is about the technical requirements for electronic filing or submission of briefs, petitions, exhibits, etc. in the Court of Appeal. There is predictable grumbling over the inconsistency in the rules from district to another, but mostly the discussion is over the page numbering requirements, which are designed to make sure that the page number of a PDF file corresponds to the page number of the physical document. Here’s how appellate attorney Robin Meadow of Greines, Martin, Stein & Richland, LLP, helpfully and succinctly explained it (my emphasis):

To elaborate a little:  This is all about reading briefs on-screen. PDF programs, whether on computer or tablet, allow you to specify a page to go to, but as Ed notes this is always the page of the PDF.  Under the old system, page 20 of a brief is something like page 30 of the PDF, because the PDF numbering includes the cover page, certificate of interested parties, TOC and TOA.  So, you have to guess at the page number to put in, or count the initial pages and then calculate the PDF page number every time.  Under the new system, there is one and only one page 20, whether you’re looking at a paper copy or the PDF.

Aside from court-imposed rules, there have been several articles about how to best prepare documents to be read by appellate justices on an iPad or other electronic device. A few months ago, Appellate Law Journal from Counsel Press (that is just a reference, not an endorsement) led me to another article on how best to format briefs for reading on tablets: Maximizing Your Appellate Brief for the iPad. That post references the Columbia Business Law Review article that I wrote about in January of last year. I will be the first to admit there are some advantages to having a text-searchable brief, but does that come at a cost?

Consider this summary of a Norwegian study at Science Nordic:

Neo-Luddites rejoice: numerous studies show that when you read a text on paper your understanding is deeper and longer lasting than if you read that same text on a computer.

Of course, if you read the text on a screen you can probably recount what you read. But you cannot as readily make use of the content in other contexts. You haven’t comprehended it as deeply and assimilated it as substantially.

Digital information isn’t just a fleeting phenomenon on your computer screen. It disappears more quickly from your memory, too. Screens are best for superficial and speedy reading.

I have felt this intuitively for some time, so I avoid doing extended reading on screen when comprehension and retention are necessary. For perusing blogs or short letters, my iPad is fine. It also suffices for novels and other lengthy leisure reading. But if I need to read a brief or a case or something else that makes comprehension and retention important, I print it out and read it off the paper, marking it up with a pen as I go. Call me a tree-killer, but I’m not about to give up this practice. I’ve tried reading PDFs on my screen and annotating them with PDF editing software as I go along, but it’s just not the same for me. I’ll stick with reading from paper; the  electronic file is always available if I need to search for something in the original text (though it’s no help in searching my notes, or course).  I wonder how many of our appellate justices feel the same way. (I hope none of the justices ever says to me at oral argument, “So, Mr. May, I read your brief on my iPad. You got a problem with that?”)

Getting back to the study: I am curious whether the study looked only at persons old enough to have grown up reading off the printed page. Perhaps today’s youth, who may have done a majority of their reading from screens, will develop so that they actually read better from a screen than from a printed page.

In a viral YouTube video [see below] from October 2011 a one-year-old girl sweeps her fingers across an iPad’s touchscreen, shuffling groups of icons. In the following scenes she appears to pinch, swipe and prod the pages of paper magazines as though they too were screens. When nothing happens, she pushes against her leg, confirming that her finger works just fine—or so a title card would have us believe.

The girl’s father, Jean-Louis Constanza, presents “A Magazine Is an iPad That Does Not Work” as naturalistic observation—a Jane Goodall among the chimps moment—that reveals a generational transition. “Technology codes our minds,” he writes in the video’s description. “Magazines are now useless and impossible to understand, for digital natives”—that is, for people who have been interacting with digital technologies from a very early age.

That’s a cute anecdote — or a horrifying one, depending on your perspective — but despite that introduction, the subhead of that piece at Scientific American notes that “research suggests that reading on paper still boasts unique advantages” over reading on a screen, and describes them in ways that suggest the printed page is advantageous even for those raised reading from screens.

For more articles and commentary on the subject, click here.

Update: I re-drafted this post as an article.

How to write for the “iPad judge”

No brief would look good on my pathetic iPad, which has some of the pieces of its broken screen held on with tape!

Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly.

As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on an iPad. “A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.” Okay, I already minimize my footnotes, I can use whatever font works best, but that last tip — “avoid confusing hierarchical organization” — sounds like trouble to me:

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same. This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

I think it would be far better to use the usual numbering system. For one thing, I think the “problem” identified is a mythical one. The reader of a physical brief might be able to estimate quickly whether the Section A on the page is under heading I, II, III or IV, and lose that advantage in an eBrief, but so what? What’s important about the superior heading is not its number, but what it says. Thus, it is the ease of actually finding the superior headings that is important. Whether in a physical brief or an eBrief, it’s easy to bookmark the table of contents and locate the superior headings easily. I have never liked scientific numbering because it doesn’t take too much depth to make the numbering unwieldy. “1.1.1” is a lot more cumbersome than a single character, and 1.1.1.1 is worse. I would hate to see courts mandate scientific numbering.

The piece has some links to some other fun reading, too, including this coverage of the Fifth Circuit system for electronic briefs, in which the court does all the work of hyperlinking to authorities (and soon, hyperlinks to the record) rather than requiring the submitting party to do the work before submitting the brief.

Citations of the future

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Trial by Tweet

More accurately, I guess, trial coverage by tweet.  A reporter as been given permission by a federal judge in Kansas to pubish updates from the courtroom via Twitter.  A few of his dispatches by tweet:

— “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation.”

— “The witness who was yelling in the hallway earlier has not returned to the courthouse.”

— “Defendants are chatting and laughing among themselves.”

— “Exhibits are shown electronically. Every juror has a monitor in the box. There is a monitor at each lawyer’s table and one for the gallery.”

It won’t be long before journalism schools offer a course in “journalism in 140 characters or less.”

We’ve already seen a blogging juror become a potential issue on appeal.  But it seems unlikely we’ll see tweeting jurors any time soon.  It would be awfully hard to tweet from the jury box without being noticed.

UPDATE: I was wrong.

A Great Resource: Social Science Research Network

SSRN Logo.pngI’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN very much. I took the time to do so this evening, and discovered there are some terrific features. Besides the subscriptions, there is a “briefcase” feature that allows you to accumulate articles of interest for later access. Going though the subscription list, I flagged about 30 papers published just this year. I’ll probably be posting links to many of them in the coming weeks. In the meantime, go to Legal Writing Prof Blog’s post for the links regarding subscriptions.

Update on Free Online Legal Research

Robert Ambrogi’s Lawsites has this update on free on-line case law resources. The most notable link is to a review of PreCYdent, which may be living up to its hype as “the Google of legal research.” Says the reviewer:

I was stunned by the results of my search [for “in personam jurisdiction”] on PreCYdent. The top six cases were the leading U.S. Supreme Court cases I studied in Prof. Reimann’s jurisdiction class. Each of them is fundamental to an understanding of the application of personal jurisdiction in federal courts. I have never seen a such a highly relevant set of search results on any electronic case search engine. Not in Westlaw. Not in Lexis. Not anywhere.

***

This stellar result was no accident or the result of preprogammed “best bets.” I tested a few other terms (e.g., “abortion” “sodomy”) and had comparably stellar results. The statute search also worked quite well. And this is the “Beta” release!

Before you discount the review, consider that it is from David Hobbie, the Litigation Knowledge Manager for Goodwin Procter. He’s in the information business.

Still, it’s hard to imagine that lawyers well-versed on a paid subscription service are going to convert completely to any of the public domain services any time soon. There’s always the problem of trying to get lawyers to try something new. And the paid services will look for ways to stay a step ahead of the game.

For lawyers who find Westlaw or Lexis unaffordable, however, it looks like PreCYdent may already be a useful adjunct to combing through the digests looking for case law. And there will surely be more to follow.

i-Cyber-Meta-Digital Law

This post highlights a post I included in Blawg Review #155 and a related post I ran across since then. Both concern how to stay out of trouble regarding electronic data.

The first, featured in my previous post, is The Multipass Erasures Myth from EDD Update, a blog about electronic data discovery. Just how much “scrubbing” of your hard drive does it take for that data on your hard drive to be unrecoverable? I think you’re going to be surprised at the answer.

The second is a post on the ethics of mining metadata in documents received from adverse parties. What is metadata? Well, the Wikipedia article on metadata is a tad geeky, so let’s go for now with what I consider a safe layman’s definition of metadata, especially for purposes of the post I am talking about: “any information about the document stored electronically in the document file and not visible in the viewed document.” In a document saved in multiple versions in a single file, this might include the previous versions, the identities of everyone who worked on the document, creation and modification dates, comments by reviewers, etc. When it comes to documents received electronically from adverse parties, there’s obvious potential for mischief, as Robert Ambrogi points out in Metadata: Read at Your Own Risk, referencing a report from a bar organization in New York that he found at Legalethics.com.

(Hat tip: Legal Blog Watch, via EDD Update.)

E-Filing Briefs in the Supreme Court

blog-announce.jpgRule 8.212, California Rules of Court was amended effective January 1, 2008 to allow parties to serve the Supreme Court electronically in lieu of physical service of four hard copies of briefs filed in the court of appeal, but the Supreme Court website did not appear to provide the promised information for doing so. That’s changed. You can now go here to start the electronic filing process for your brief.

I haven’t tried it out with an actual brief yet, but it looks pretty straightforward. I’ll be able to try it out in a week or two and will report on it then.

Hat Tip: Jeffrey Lewis at Nota Bene.

E-Filing in C.D. Cal Made Easy?

As southern California federal practitioners know, e-filing became mandatory this year for nearly all civil cases in the Central District of California. Now comes a handy bit of information via Kimberly Kralowec at The UCL Practitioner, where she posts: “Attorney Martin W. Anderson has made our lives easier by creating ‘The Unofficial E-Filing Manual for the United States District Court, Central District of California,” available for free download at his site.'” For links to the guide and to the Daily Journal article from which Kimberly learned about it, see her post.

Ninth Circuit Fires Up Electronic Case Management Efforts

The Ninth Circuit announced last Friday that it “will begin implementation of the appellate version of a new case management system, CM/ECF (case management/electronic case files) on March 3, 2008.” See this link for details about timing, training, and sign-up for e-mail notification of docket activity.

Thanks to Criminal Appeal for the link.

Legal Writing Podcasts from Suffolk

Suffolk University Law School has launched a series of podcasts, including a weekly podcast on legal writing, through Apple’s iTunes U.  Wednesday’s press release from the school is here.  Go here for Suffolk’s iTunes U portal, which tells you everything you need to know and provides links that will automatically open iTunes to Suffolk’s podcasts.

Thanks to Legal Writing Prof Blog.

The Google of Legal Research?

Crime & Federalism recently posted about a new research service called “PreCYdent,” the function of which he briefly describes:

It appears to “rank” cases much in the way Google ranks web sites. For example, typing in “qualified immunity” in PreCYdent doesn’t just give you a random list of cases. It gives you the leading cases. Saucier v. Katz, for example, is the leading modern day case on qualified immunity. It’s also the first result.

Not all searches run that well, as the writer points out in what amounts to a mini-review, but the service shows promise. You can read more about the service at Right Coast in a post authored by one of the co-founders of the company developing the service.

UPDATE (1/31/08): I’ve corrected the first link in this post to go to the intended post at Crime & Federalism. I had initially linked directly to my comment at that post, instead of the post itself. That was inadvertent. I’m not that narcissistic. Honest. No matter what Judge Kozinski says.

UPDATE #2 (1/31/08): Also posting about the new service is Robert Ambrogi’s Lawsites, which includes some details about the service and several informative links. Thanks to Appellate Law & Practice for the Ambrogi link. And thanks to both of them for this link to the PreCYdent service.

Threats to Westlaw and Lexis

Adjunct Law Prof Blog has a post linking to information on upcoming internet repositories for federal case law, and wonders whether new services coming on line will spell the end of Lexis and Westlaw.  I suspect these venerable pay services will stay one step ahead for some time.

I remember seeing a debate in an internet forum once over whether it might be considered malpractice not to conduct computer-aided research.  If there is a big gap in services, or the newer services cannot replicate book research, then perhaps that debate will turn to whether it is malpractice to use a less powerful computer-aided research tool.

A Technology-Induced Rush to Dismiss?

The Ninth Circuit has some unkind words for the district judge in Calderon v. IBEW Local 47, case no. 05-56937 (November 13, 2007). The district court dismissed the case for lack of prosecution because plaintiff’s counsel did not show up at a hearing on an order to show cause re dismissal for failure to serve one of the defendants.

Problem: the district court only gave notice of the OSC re dismissal via e-mail. Since plaintiff’s counsel did not consent to electronic notice (Fed. R. Civ. P. 5(b)(2)(D)) and did not regularly check his e-mail (and, given his lack of consent to electronic notice, had no obligation to do so), he missed the hearing. Putting aside the issue of whether a dismissal sanction is an abuse of discretion when it is imposed for missing a single hearing — an issue raised very briefly by the court — the notice was ineffective. Notwithstanding the attorney’s reasonable excuse for missing the hearing, the trial court denied plaintiff’s motion to vacate the dismissal, and did so without a hearing.

This easily meets the standard for “abuse of discretion,” says the Ninth. Indeed, the court takes the unusual step of apologizing to the parties. In the same sentence, it admonishes the district judge to “exercise more care and patience in the future.”

The district judge in question is Manuel Real of the Central District of California. Two prominent bloggers used the Calderon opinion to opine on Judge Real; both California Appellate Report and Decision of the Day do so in language that suggests they don’t plan to appear before Judge Real any time soon. More of Judge Real’s colorful history is memorialized in this Law.com judicial profile.

Anyway, on to the point reflected in the title of this post.

I wonder if Judge Real wasn’t made impatient because of the electronic notice. With electronic this and electronic that, we (as a society) expect everything to happen now.

By the time I was admitted to the bar in 1992, faxes were common. Car phones were widespread (though handheld cell phones were not), though somewhat pricey. My first firm (more than 1200 lawyers strong at the time) was still using Wang word processing in its LA office and e-mail had not yet been implemented firm-wide, if I recall correctly. Portable computers were heavy and hugely expensive. So things have accelerated greatly in the 15 short years since I became a lawyer.

I recall a partner at one of my BigLaw firms reminiscing in the mid-90’s about the “good old days” before fax machines. She thought the practice of law was much more civil before faxes. Fax machines, in her mind, were a leading cause of threatening letters sent by opposing counsel on Friday afternoons demanding detailed responses by Monday morning . . . or sooner. The same partner usually made a point of being totally incommunicado when on vacation.

My favorite anecdote regarding the impatience that technology breeds came from an an associate at Baker & McKenzie (where I spent my 2L summer in 1991), who once saw two attorneys in Los Angeles pacing back and forth impatiently outside the firm’s mailroom, cursing under their breath. When he asked why, they responded that they were faxing a contract and “it’s taking three minutes per page for this contract to get to Tokyo!”

While properly leveraging technology can make your life easier, I have some sympathy for (and sometimes count myself among) those who believe that, in many respects, technology just makes us work harder!