Technology And Appellate Litigation: What, If Anything, Has Changed?
By Howard J. Bashman
Monday, May 13, 2002

Nothing has changed, and yet everything has changed. Depending on how deeply you delve, both statements accurately describe the impact technology has had on appellate litigation over the past fifteen years.

Today, as in the past, appellate briefs printed on paper are submitted to courts, along with multi-volume appendices, also printed on paper. That mass of paper is then shipped to appellate judges assigned to decide the case. Next, the judges read through the briefs and look at the relevant portions of the record. If oral argument occurs, the judges and lawyers all travel to the same courtroom to argue the case. Sometime thereafter, the court issues a written decision, which it mails to the parties. In these respects, technology has had very little impact on appellate litigation over the past decade and a half.

But during that same period, technology has radically changed how appellate lawyers and judges do their work. Fifteen years ago, few law offices had personal computers. Email was not readily available, and who among us had yet heard of the Internet? If you hoped to determine whether a reported case remained good law, you had to go to a library that had bound volumes of Shepards, find the case, look at every pertinent later volume and soft-cover update, and then hope that nothing untoward had happened since the last update was published. And, if you were working on a case that involved law from a faraway state, you had to travel to a law library that had within its collection that state's statutes and caselaw.

Today, by contrast, a technologically savvy lawyer can be a top-notch appellate attorney without ever leaving the house. With my personal computer, cable modem connection to the Internet, and a subscription to Westlaw, I can access from my den at home more legal materials than I would find on the shelves of many of the nation's largest law libraries.

Through an account from PACER -- the acronym stands for Public Access to Court Electronic Records -- I can check the status of appeals that I am handling in the U.S. Court of Appeals for the Third Circuit and in other federal appellate courts throughout the nation. The state appellate courts of Pennsylvania also now provide online access to their dockets. The Pennsylvania Superior Court's online docket allowed me to learn, several weeks ago, that the court had affirmed the judgment in favor of my client, the plaintiff in a multi-million-dollar insurance bad faith case, on the very same day that the court issued its unpublished decision. Previously, I would have had to wait several days to obtain a copy of the decision in the mail. Instead, my client knew of his victory on appeal the very day it occurred.

Most federal and state appellate courts now release their newest precedential opinions on the Internet each day, and many of those courts also make available online their not precedential decisions. Within the past year, the Third Circuit has begun to send email messages to counsel of record on the day that a decision issues, and the email provides an Internet link to the text of the court's ruling.

Although, in my view, technological innovations have had an overwhelmingly positive effect on the practice of appellate litigation, there is at least one respect in which technology may prove more of a hindrance than a help. Technology makes it far too easy to take a brief that failed to win in the trial court, or that was barely adequate to achieve victory there, and turn it into a brief that will be inadequate to win on appeal. I have seen too many lawyers lose on appeal by submitting essentially the same brief that they filed in the trial court.

The most pitiful, though frequently encountered, examples of these retreads continue to ask the trial court for a favorable ruling, even though it is the appellate court's favorable ruling that the parties are now seeking. If you are going to submit essentially the same brief on appeal that you submitted to the trial court, at least take the time to review and edit the brief to ensure that it recognizes that the case is now pending in an appellate court.

On the other hand, the benefits that technology has conferred on appellate litigation are almost too many to mention. Aside from being able to access decisions and dockets online, many trial and appellate courts also provide online access to pleadings, briefs and oral arguments. Many federal district courts are participating in the RACER system, which stands for Remote Access to Court Electronic Records. Courts in the RACER system allow online access to the contents of a case file, enabling the user to read over the Internet the text of a complaint or brief that was filed in the trial court. On May 1, 2002, rules that allow the electronic filing of pleadings and briefs took effect in the U.S. District Court for the Eastern District of Pennsylvania.

Several federal appellate courts, including the Seventh and Eighth Circuits, provide on their official Web sites electronic access to parties' appellate briefs and to audiotapes of oral arguments. If I see a Seventh Circuit decision on an issue of interest to one of my appellate clients, within minutes I can be reading and emailing to others the briefs filed in that case and be listing to and emailing to others a computer file containing the audiotape of the oral argument. The Third Circuit's Web site does not yet provide access to briefs and oral argument audiotapes, but I hope that it soon will. Lawyers who excel at writing appellate briefs and at delivering appellate oral arguments will have nothing to fear from this development; meanwhile, everyone else's skill at appellate litigation will be revealed for all to see and hear.

The Third Circuit is on the cutting-edge of technology when it comes to enabling its judges to participate in oral argument. At a recent en banc oral argument, Judge Jane R. Roth participated via teleconference from California, and other Third Circuit judges have participated in oral arguments via teleconference. The Third Circuit's main courtroom has been wired with cameras and video screens to allow the judges in Philadelphia to interact with lawyers and even litigants, such as prisoners, who are arguing from other locations.

Given how mystifying the appellate process can seem to many lawyers, it is not surprising that the general public understands far too little about the role of appellate courts and how they reach decisions. By making appellate briefs, oral argument tapes, and decisions publicly available, appellate courts will enable lawyers and the public to understand better how these courts operate. And, anyone who is worried that televising appellate oral arguments might debase those proceedings need only watch a telecast of the en banc Superior Court of Pennsylvania on the Pennsylvania Cable Network or the U.S. Court of Appeals for the Ninth Circuit on C-SPAN to have that fear alleviated. To increase public awareness, one could even begin writing an Internet Web log devoted to appellate litigation, as I have recently done. See http://appellateblog.blogspot.com/.

What additional change is technology likely to bring to the practice of appellate litigation? Effective December 1, 2002, the Federal Rules of Appellate Procedure will allow counsel to agree to accept service of appellate briefs electronically. The increasing use of videotape and audiotape at trial may allow appellate courts to see for themselves if a capital defendant's attorney truly was asleep during critical junctures of a trial or to hear whether a trial judge's tone of voice in delivering jury instructions was unfairly prejudicial to a party.

In my practice, most every deposition and trial transcript that I use consists of a computer file that I can easily search for key words and phrases. Appellate courts should demand similar electronic access to transcripts and briefs. It is so much easier and faster to search an eleven-day transcript by computer for the single mention of a name than to find the mention in a paper copy of the transcript.

The most exciting development that the future is likely to bring is the increased use of CD-ROM briefs on appeal. A single disc can contain the text of an appellate brief, the text of all opinions, statutes and other authorities cited in the brief, and the entire reproduced record or appendix on appeal. Every citation to a legal authority contains a hyperlink that, if the user clicks on it, takes the user to the text of the cited authority. Similarly, every cite to the record contains a link to the text of the document or other item cited. If a witness testified at trial via a videotaped deposition, the disc can play the relevant portion of the videotape as record support.

The most technologically savvy trial lawyers in the nation are demanding courtrooms with computer monitors for the jurors and the judge to enable documents, animations and deposition testimony to be presented. Before too much longer, I expect to see appellate courtrooms similarly outfitted. If an appeal requires resolving the disputed meaning of a statute, a contractual provision, or an earlier court ruling, the advocates and judges might find it very useful to be able to highlight on a video monitor different portions of the disputed text to determine what understanding is the best.

During the past fifteen years, technology has significantly changed, and in large measure improved, the manner in which appellate lawyers do their job. And, while the day when appellate judges and lawyers are replaced by super-computers programmed to achieve justice thankfully remains too far off in the future to be seriously contemplated, we should expect that technologically-driven changes in appellate practice will continue to occur at a rapid rate in the years to come.


This article is reprinted with permission from the May 13, 2002 issue of The Legal Intelligencer 2002 NLP IP Company.

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Howard J. Bashman

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