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Howard J. Bashman

Special to Law.com

11-20-2006

The 8th U.S. Circuit Court of Appeals recently announced on its Web site that it will begin implementing its appellate electronic case filing system in December -- and the other federal appellate courts aren't far behind.

Many lawyers are already familiar with electronic case filings in federal district courts, where ECF systems have been launched across the nation over the past several years.

In the federal trial court system, pleadings, motions, briefs and exhibits are being filed and served on other counsel electronically instead of on paper. Computerized PDF files, which can be read using the Adobe Acrobat Reader, have replaced paper as the format of choice for federal trial court filings.

Federal trial court judges, who were initially skeptical of moving from a paper-based to an electronically based filing system, have generally grown to appreciate ECF, and are now accustomed to reading briefs on the computer. One noteworthy advantage of ECF for these judges is that they can file and serve orders and opinions on any day, and at any time, without relying on the Clerk of Court's office. And thanks to the incremental launch of ECF in the courts, the vast majority of cases that will be the subject of ECF appellate proceedings will have begun as ECF cases in the trial court.

Just as federal trial court judges were once skeptical of eliminating paper with the advent of ECF, federal appellate judges must now decide whether to require the filing of paper copies of briefs and appendices in addition to the ECF copies. Perhaps not surprisingly, federal appellate judges are, at least at the outset, even more reluctant than federal trial judges to abandon briefs and appendices filed on paper.

That reluctance is unfortunate, as ECF offers many potential benefits, the greatest of which may be the elimination of the need for an appendix printed on paper. In the days before ECF's use in federal district courts, only one copy of a paper-based trial court record was generated, which meant the parties on appeal had to reproduce in an appendix additional copies of the most relevant items in the trial court record -- pleadings, exhibits, briefs, transcripts -- so that each appellate judge could have a copy of those materials handy while considering what decision to reach in the case.

However, now that trial court records exist largely in electronic form, multiple ECF account holders can simultaneously access the document. If federal appellate judges have access to electronic versions of trial court files, it clearly makes little sense to require the parties to file paper copies of those pleadings bound into an appendix on appeal.

Unfortunately, even today not all documents that could be reproduced in an appendix on appeal are available electronically through federal district courts' ECF systems. Trial court transcripts, for example, are not available for download via ECF, perhaps reflecting the power of court reporters, who apparently have prevailed on judges to prevent that access, thereby making it more difficult for attorneys to obtain such transcripts without paying a court reporter for them. In addition, copies of exhibits used at trial are not commonly filed electronically in the federal district court.

For ECF systems to serve as a perfect substitute for the appendix on appeal, federal appellate courts will, of course, need electronic access to trial court transcripts and exhibits used at trial. If those items were available electronically to those courts, the appendix on appeal could be eliminated altogether, and the parties on appeal could cite directly to the materials in the trial court's original ECF record.

A compromise would be to either allow or require litigants to file an appendix on paper limited to one 500-page volume containing only those portions of the trial court pleadings, briefs, transcripts and exhibits that are of the greatest importance to the appeal. Doing this in cases with tremendously large trial court records may be especially difficult, but the remaining portions of the record would continue to be available to the federal appellate court electronically.

Alternatively, the federal appellate courts could mandate that any paper-based appendix filed on appeal would be limited to those items not available electronically via the federal trial court's system, as a means of preventing any overlaps with the trial court's ECF documents.

One of the worst possible ways to solve the ECF appellate appendix conundrum would be to require the parties on appeal to compile an entire paper-based appendix, as has been done in the past, and then scan that appendix in to a PDF file, which would then be electronically filed with the federal appellate court. The drawback to this scenario is that PDF files created via optical scanning consist of images of documents whose content cannot be searched or copied and pasted into new documents.

By contrast, most of the PDF files found in trial court ECF systems are so-called "native" PDF files, which have been created directly from a word processor and can be searched via the Adobe Acrobat Reader, and can also be copied and pasted into a new word processing file. Requiring the scanning of federal district courts' native PDF documents to create a new PDF version of the appendix would merely serve to deprive the federal appellate court of the functionality offered by the original native PDF files. This is why I believe that federal appellate courts should, to the greatest extent feasible, eliminate the requirement that an appendix be filed on appeal where the district court materials are available electronically to the federal appellate court.

Although federal appellate courts are unlikely to immediately eliminate the requirement that paper copies of the appellate briefs be filed in addition to an electronic copy, I expect that these courts will ultimately do away with this rule. Federal appellate judges -- like their counterparts on the federal district courts -- will, over time, become accustomed to reading and evaluating briefs on a computer terminal. And federal appellate judges whose fondness remains undiminished for paper copies of briefs can easily satisfy that desire by hinting the "print" button.

Despite all the technological advances in society in general and the court system specifically, comparatively little is still known about ECF on appeal. If federal appellate judges are serious about making ECF a success, they should look to the federal district courts' procedures and try to eliminate paper in their own courts as much as possible.

Given that electronic records on appeal are likely to ultimately replace traditional multivolume paper-based appendices, I conclude that federal appellate courts should embrace these evolving procedures now and set about maximizing the use of electronic records being generated in the federal district courts.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.

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