Howard J. Bashman's appellate columns, etc.

The Future of Electronic Filing in the U.S. Courts of Appeals

By Howard J. Bashman
Monday, October 11, 2004
Two weeks ago, I was the keynote speaker at a dinner that began a conference sponsored by the Federal Judicial Center and the U.S. Court of Appeals for the Eighth Circuit on the "Future of Electronic Filing in the Federal Courts of Appeals."

Many U.S. District Courts and U.S. Bankruptcy Courts throughout the Nation have begun to implement Electronic Case Filing (ECF) procedures. And in a growing number of federal judicial districts, electronic filing is mandatory.

Where electronic filing is mandatory, every document filed in court must be filed in electronic format over the Internet. Those litigants who lack the ability to file documents electronically will have their filings on paper turned into an electronic filing at the Clerk's Office through the use of scanning technology. While, in the past, scanned documents were not as legible as the original paper version, today scanning technology has improved to the point where a scanned copy is as legible as the paper copy from which it was produced.

Most federal electronic court filing systems use PDF (Portable Document Format), which is technology produced by the Adobe Systems Incorporated. The Adobe Acrobat Reader, required to view a PDF file, is available free of charge, and the complete Adobe Acrobat program, which is required to transform a Microsoft Word or a WordPerfect document into PDF or to scan a document into a PDF file, is relatively inexpensive and well worth the investment.

Because in an ever growing number of federal judicial districts the court's files are now in electronic format, federal appellate courts are beginning to examine whether they too should begin to allow (or mandate) electronic filing. Today, the typical federal court appeal requires lots of paper. In most appeals between just two parties, three briefs get filed (Appellant, Appellee, and Appellant's Reply), and those three briefs often have a combined length of more than 100 pages. In an appeal with more than one appellant or appellee, multiple briefs for each side are often filed. And every federal appellate court requires that multiple copies of each brief be filed with the court and served on opposing counsel.

Then there is the Appendix on appeal. In moderately complex cases, the Appendix can easily exceed 1,000 pages in length. In a case where the federal trial court's files are in paper format, there is only one copy of the trial court’s record, so any document that the appellate judges will need to see in order to decide the appeal must be provided in the Appendix.

This reality often leads to a defensive manner of Appendix designation, where the opposing lawyers in the appeal designate way more material for inclusion in the Appendix than the appellate judges ever likely will need to see. Thinking back to my two–year clerkship for a judge on the U.S. Court of Appeals for the Third Circuit, I cannot remember even one case involving a multi-volume Appendix where we needed to refer to any more than a small fraction of the Appendix in order to decide the appeal.

In the new electronic age of federal court filings, however, it is no longer correct to say that only one copy of the trial court's record exists. Because the trial court's record exists in electronic format, multiple users can access the record simultaneously from many different locations. The question thus arises whether, in a case where the trial court's record is entirely in electronic form, there is any need at all for the parties to print out relevant documents and present them in a paper Appendix on appeal.

Instead, the parties on appeal could simply provide a list of the most relevant documents that they would have put into the Appendix under the old system, or the parties can be allowed to print out just a few hundred pages of the most highly relevant portions of the record as a mini-Appendix, mindful that the entire record is available to the appellate judges in electronic format.

Although having federal appellate courts switch over to an electronic filing system would likely save attorneys and their clients a great deal of photocopying costs, there is legitimate concern that those costs would then be imposed on the federal appellate courts. It is not as easy to read a document on the computer as it is to read the document on paper. And although the complete Adobe Acrobat program permits notes and comments to be appended in a PDF file, that is not the same as scribbling in the margin of a document, circling text, or adding asterisks or exclamation points.

If electronic filing is to be allowed on appeal in the federal courts, those courts will need to determine whether the fees associated with filing an appeal should be increased to cover the additional printing costs (in paper, toner, equipment, and electricity) that the federal appellate courts likely will face as a result of having to print out briefs and many other documents. Another necessary expense for appellate courts will involve the purchase of larger computer monitors for judges, law clerks, and secretaries, to make it easier for these users to manipulate electronic documents on–screen.

Federal district courts that have mandated electronic filing have initially experienced large cost increases for paper and toner, but those increased costs later dissipated as judges and other court employees become more comfortable with reading briefs and other material on–screen.

Although federal appellate courts would likely experience some increased costs as a result of a conversion to electronic filing, there are also costs savings that would certainly follow. Most obviously, those courts would no longer have to receive, house, and distribute the enormous amounts of paper filed in connection with cases pending on appeal. Briefs and appendices are usually filed in the Clerk's Offices of U.S. Courts of Appeals and then shipped, often long distances, to judges whose chambers are based in various places throughout the geographic territory of the circuit. When documents are filed electronically, they will no longer have to be shipped in heavy boxes from the Clerk's Office San Francisco to judge's chambers in Honolulu, Hawaii or Fairbanks, Alaska.

The Clerk's Offices will also save postage in no longer having to mail opinions, orders, and notices in electronically filed appeals. Instead, those items can be delivered electronically, and rulings (including opinions and orders) can be downloaded by interested counsel from the court's computers instead of having to await receipt of the rulings in the mail.

Another advantage of an electronic filing system is its ability to avoid devastating loss as the result of terrorist attacks or natural disasters. Unlike a court's paper file, which indeed may only exist in a single location, a court's electronic case file can be backed-up offsite on a daily basis. Thus, if a fire, earthquake, hurricane, or bomb destroys a courthouse, the case files remain available in their original form.

In my appellate practice, the ability to obtain district court filings electronically has repeatedly saved me and my clients much inconvenience and expense. Most lawyers in practice today regularly transmit documents electronically to clients, co-counsel, and opposing counsel, so filing documents electronically in court will not be something that causes them to be stricken with fear. And transforming a document from Microsoft Word to PDF, or scanning a document into a PDF file, takes little more effort than several clicks of a computer's mouse.

The true advent of electronic filing in the U.S. Courts of Appeals will be quite a momentous occasion, and it is likely to occur sooner rather than later. The goal of any judicial system must be to achieve justice fairly and inexpensively. Making the entire court record available in electronic format to federal appellate judges should help ensure that cases are resolved more fairly. And reducing the number of trees that are killed to process an appeal should, in the long run, reduce the expense involved in the appellate process.

This article is reprinted with permission from the October 11, 2004 issue of The Legal Intelligencer © 2004 NLP IP Company.