U.S. Court of Appeals for the Tenth Circuit: eBriefs on the rise. Why do various jurisdictions find eBriefs advantageous even in the era of e-filing?

John C. Kruesi, Esq. With many appellate courts moving to e-filing, it is only natural that hyperlinking has become a hot topic with practitioners and the bench. At the same time, one would expect the interest in eBriefs to decline. Yet, not only this has not been the case, but it is in fact the opposite. We have noticed a rise in client and judicial interest, particularly in venues where we have not previously submitted eBriefs or those that do not have rules regarding eBrief submission.

Rise in client and judicial interest
In the past year, we have filed an increasing number of eBriefs, including multiple appeals in the Tenth Circuit – a court that has e-filing and no rule encouraging or even addressing the more robust eBrief filing. We have also enjoyed a growing demand in alternative resolution matters. Arbitration is a particularly effective venue because it makes it much easier for arbitrators to review what can be mountains of expert testimony and related exhibits. The looser arbitration procedural requirements give even greater flexibility in presenting multimedia exhibits that are accessible directly from the eBrief. We are filing in large state cases, district courts and, even, internationally.

Why eBriefs are popular in an age of e-filing?
So why are eBriefs alive and well in this age of e-filing? E-filing’s future promise is to be able to put a file at a judge’s fingertips and link the reader directly to the relevant supporting material within the court record or elsewhere (read an article on cross-document linking). Some day, the court systems may get this mission fully-accomplished; even today, we can achieve spectacular results with linking – e.g., e-filing a short video clip directly to the PACER CM/ECF system. However, there are still major technical limits for non-pdf documents, larger files, robust navigation aids and menus, and many other issues. On the contrary, the eBrief has very few limits. For the most part, there is no file-type restriction and no size limits or problems with stale or expired links. Some of our recent projects have involved enough data that we have submitted portable hard drives to file the eBrief. We include a start page and menu with better interaction between linked documents and generally the interaction and linking works better when it’s not happening in a web browser.

So you have a case that is a good candidate, what’s next?
If it is a court actively seeking eBriefs or has rules in place, such as the Federal Circuit or the Second Circuit, or state courts in CA, DE or TX, among others, then usually you just file the proper notice and submit the eBrief according to those rules. For those jurisdictions that do not have rules regarding eBrief submission, such as the Tenth Circuit, a simple motion is filed. Since the eBrief works best when it contains all the documents, this can be a joint motion with a joint eBrief. The filing is normally made in addition to the standard briefing requirements, requires no special systems for the court to use and has a positive reputation on the bench, so the motion will normally be favorably received. Here, at Counsel Press, we have experience with these motion requirements and we can give samples or even help draft this type of motion.

Get it done correctly the first time, every time
If you have any questions, need assistance with hyperlinking your brief or if you are considering filing an eBrief, please do not hesitate to contact me directly. I have been working for Counsel Press for 20 years as the Senior Appellate Counsel for our Federal Circuit practice. The uniquely technical and complex nature of the patent cases we file on behalf of our clients put us at the forefront of the electronic submission of appellate filings, particularly on eBriefs and related, linked electronic filings. Constant monitoring of the latest developments in software and strict observance of the frequent changes in the standards and requirements of the appellate courts make our workflow efficient, dependable and rule-compliant.

Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Our Washington, DC office focuses on rule-compliant appellate filings in the Maryland, DC and Virginia state and district courts, as well as the D.C. Court of Appeals, 4th Circuit Court of Appeals and Federal Circuit Court of Appeals. We offer unparalleled in-depth expertise nationwide in all state & federal courts through our local offices.

Tagged: Appellate Practice, Appellate Services, Court Technology, Electronic Briefs, United States Court of Appeals for the Tenth Circuit, Production & Support, Litigation


 
 

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