What Judges Say About Electronic Briefs


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Judges Prefer Electrons


This month, Twenty Questions interviews Judge Frank Easterbrook of the Seventh Circuit Court of Appeals.  (Thanks to Rain Man for the pointer).

Judge Easterboork, in answer to Question # 5, points out the advantages of the Circuit's Local Rule 31, which requires an electronic (version of all briefs:

 "There is one record, in Chicago, and three judges per panel. Of our 11 active judges, only 6 have principal chambers in Chicago. (Two of four senior judges who continue to hear cases also are located away from the headquarters.) Moreover, even the judges with principal chambers in Chicago often prepare elsewhere--at home, in Michigan, in Paris, or in my case in Alaska, where I escape to relax and work. Counsel must file briefs and appendices electronically, see Circuit Rule 31(e), so that judges can read wherever they find themselves. Electrons are much easier to tote around than those heavy protons and neutrons that constitute paper!"

Although the court rules do not mention hyperlinked briefs, we have never had any difficulty submitting them as courtesy copies after filing the hard copy and simple electronic copy that the rules mandate.

"The next time a large stack of papers arrives, just hope it's accompanied by an electronic version."


Kansas judge Steve Leben extolled the virtues of electronic briefs in an Article he wrote for Court Review magazine.  Judge Leben described the afternoon that he received "a copy of one of those motions that everybody hates to get -- a summary judgment motion that, with supporting materials, can only be measured in inches." 

Fortunately for Judge Leben, one party later provided an electronic version of the brief, with hyperlinks to the case law and supporting documents.  The hyperlinks, videotape excerpts, and compact size, said Judge Leben, made his job much easier.  He concludes, "The next time you're sitting in your chambers, minding your own business, when a large stack of motion papers arrives, just hope it's accompanied by an electronic version."

Get the entire Article, published by the  American Judges Association

The company that created the brief for Judge Leben, RealLegal, no longer offers electronic briefs

Court Describes Electronic Briefs as "Versatile" and "Useful," but Denies Reimbursement for Costs


The Second Circuit Court of Appeals recently disallowed the costs of producing an electronic brief.  Phansalkar v. Andersen, Weinroth & Co., L.P., 356 F3d. 188 (2d Cir. 2004) (also available at the 2d Circuit website).  The winning pArty sought reimbursement of the $16,112.00 that it spent on a CD with hyperlinked versions of its appeal brief, reply brief, and appendices. 

The court denied the bill of costs, noting that, since the pArties had filed both hard copies and electronic copies of their briefs, the latter were duplicates.  The court also said, "[I]t is decisive that there is no written stipulation or understanding between the pArties concerning the allocation of the incremental costs of this useful technology."  Id. at 191.

The court also noted that "CD-ROM submissions that hyperlink briefs to relevant sections of the appellate record are more versatile, more useful, and considerably more expensive. "  Id. at 190.

TGL prices are much less than $16,000 per brief.

The Story of Electronic Filing in Federal Courts

Nov. 2003

The Third Branch has an interesting article about the origins of electronic filing in the federal courts.  The judge who spearheaded e-filing, the Hon. Owen Forrester (N.D. Ga), recalls the moment he decided to search for electronic solutions:

 “In 1991, I had a 5’8” law clerk,” Forrester recounts. “One day, I came into the office, and there he was standing beside a pile of papers for one summary judgment motion stacked up as tall as he was. That’s when it occurred to me. We needed the same control over the documents in a case as programs like Westlaw gave us over the law in a case.”

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