Features – E-Filing Appeals with Adobe Acrobat

Joel B. Rothman is the founder and president of Court CD, Inc., and is a shareholder of the Florida law firm Seiden, Alder, Rothman, Petosa, & Matthewman, P.A. Mr. Rothman is resident in the firm’s Boca Raton, Florida office where he specializes in appellate practice and technology law. Mr. Rothman welcomes questions and comments to [email protected] or to 561.416.0170.

By now, most attorneys are familiar with Adobe® Acrobat® from the free Adobe® Acrobat® Reader program installed on just about every personal computer. Acrobat® Reader allows anyone to view and print PDF files, the dominant file format for document exchange. Recently, PDF, which stands for Portable Document Format, has emerged as the standard for the electronic filing of court documents, and more and more courts are encouraging parties to file court papers, like briefs, in PDF format. In particular, appellate courts are beginning to accept briefs for filing in PDF. As a result, lawyers may need to familiarize themselves with how to create and publish PDF files in order to keep up with e-filing requirements, now and in the future.

PDF Files Are Portable, Verifiable and Searchable

The benefits of PDF for electronic filing are myriad. First, PDF maintains the integrity of a document and reproduces it, in electronic form, exactly as it appears in print. All formatting, font choices, graphics and other features are preserved, regardless of the software installed on the computer viewing a PDF file, or the operating system that computer runs. As long as the viewer has the free Adobe® Acrobat® Reader software installed on his or her computer, the PDF document can be viewed and printed. That is what the “Portable” in Portable Document Format stands for. For example, a single PDF file viewed on an Apple PowerMac G3 will look exactly the same when viewed on an Intel Pentium III based PC running Windows 98 Second Edition as it will when run on a computer with the Unix or Linux operating systems installed. This attribute makes PDF files truly platform independent. Since there are free versions of Adobe® Acrobat® Reader software available for practically every operating system in use today, PDF files can always be viewed no matter who views them. Also, because the PDF file format has not changed in years, and all versions of the free Adobe® Acrobat® Reader software are made backwards compatible, you should never encounter a PDF file you can not view on any computer.

Another valuable attribute of the PDF format, and one that is especially important for e-filing, is that PDF files may be made as permanent (if not more so) as their paper counterparts. PDF files can be secured using passwords so that they cannot be altered after they leave the hands of the author. Acrobat® 4.0 supports a number of options for securing a PDF file. The creator of a PDF document can even prevent a reader of that document from copying and pasting text from that document into other programs.

PDF files can also be “signed” with a digital signature to verify authenticity. Obviously, the court and counsel need to rely on a document as authentic. Using PDF, along with a digital signature and password protection, ensures not only that your document will reach its intended reader without unauthorized changes along the way, but also that the reader can verify that you were the author of that document.

PDF documents are not just identical images of their paper counterparts, though they may look that way. When PDF documents are produced, they can be made key-word searchable. This means that the reader can instantly jump to the place in your brief where you discuss a particular case, witness, or any important fact the reader is looking for. No more leafing through a brief to find a specific cite or argument; PDF does that work for you.

PDF: the Format of Choice for Courts

The fact that a PDF document maintains its integrity from one platform to another, that it can be made identical from electronic to paper, and that PDF is protectable, verifiable, and searchable, has led numerous courts to adopt PDF as a standard. Currently, three United States Circuit Courts of Appeal specifically authorize parties to file briefs in PDF format: the First Circuit (Local R. 32.1), the Eleventh Circuit (11th Cir. R. 31-5), and the Federal Circuit (Local R. 32(e)). Other federal courts, like the Bankruptcy Court for the Southern District of New York, accept documents for e-filing on a case by case basis when all parties agree. State courts have also adopted similar rules. For example, pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure, parties to appeals in that state can file briefs in PDF via the Internet. The appellate rules chart below provides a snapshot of e-filing rules in federal and state appellate courts.

In all these courts, a paper brief is still required, which begs the question: why go to the trouble and expense of filing in PDF? The answer reveals what is perhaps the greatest benefit of PDF files in litigation: interactivity.

The Interactive Advantage for E-Filing

All the rules allowing e-filing of appellate briefs adopted to date permit the party filing an electronic brief in PDF to create hyperlinks from citations in the brief to PDF files containing case law, to record citations stored on the same CD-ROM, to documents available on the Internet, and to other source material in electronic format. Parties can also create bookmarks and other navigational tools to assist the reader in finding the portion of your brief on which you want them to focus. The liberal use of hyperlinks and bookmarks in a brief turns a static document into an interactive advocacy tool for the litigant. Imagine clicking on a case cite in a brief and instantly the case opens up and turns to the specific proposition of law for which you cited it. Imagine clicking on a record cite and being presented with the exact testimony given by a witness at trial, the judge’s ruling from the bench, or any other factual matter key to your case. With PDF, a dynamic document such as this can be produced.

Getting Started with Adobe Acrobat

The hardware and software requirements for e-filing in PDF are minimal. In order to produce a PDF file you need the full version of Adobe® Acrobat® which retails for around $200.00. Of course, you need a word processing program, but you probably already have one that you are using to write your brief. Acrobat® can produce files using any word processor that can output to a Postscript file, which includes all recent versions of Word and WordPerfect, as well as many other programs.

In order to burn CD-ROMs for submission to the court you will need a CD-R or CD-RW drive, CD burning software (which often comes bundled with the drive), blank CD-R media, CD labels and a printer on which to print the labels. Some courts, like the 11th Circuit, allow you to skip the CD-ROM burning process completely and just upload your brief via the Internet to the court’s web site. Since your brief is then made available there to the world, you do not even need to serve the electronic brief on the parties.

For most basic e-filing projects, where you are producing a verifiable, protected, key-word enabled, searchable brief with hyperlinks to case law and statutes on CD-ROM or the Internet, the hardware and software listed above are all you need. More involved e-filing projects may require you to purchase a scanner and software, or outsource the scanning. Adobe® makes a plug-in program for Acrobat® called Adobe® Capture that takes scanned documents, performs optical character recognition (OCR) on them, and then converts them to searchable, PDF files. If you want to include paper documents on your CD-ROM, and make those documents as searchable as PDF documents you create from a word processing document, you need Adobe®Capture.

A Brief Experience with E-Filing

Earlier this year my firm filed briefs on behalf of an appellee/cross-appellant we represented in an appeal pending before the 11th Circuit. Under Eleventh Circuit Rule 31-5 adopted last year, either party to an appeal can file its briefs in PDF on CD-ROM. Consent or agreement of the other parties is not required. All that the party needs to do is attach its CD-ROM, appropriately labeled, to the back cover of the copies of the brief that party files and serves.

The fruit of our labor is not just an electronic brief on CD-ROM, but an interactive litigation tool containing clickable hyperlinks to original source material and case law on the same CD-ROM and the Internet. If you want to read a case, simply click on the case cite and it appears. If you want to read a cite to the record on appeal, simply click on any record cite and an image, identical to the paper document it was made from, is presented to you. If you want to read the full text of a statute, click on where the statute is cited in the brief, your Internet browser opens, and you are instantly transported to the page on the world wide web where that statute is displayed.

The obvious benefits to the court and the parties in making a brief interactive in this manner easily convinced us, and our client, that filing our brief electronically gave us an advantage we could not pass up. Whether this translates into a real litigation advantage for our client before the court may never be known. Based upon my personal experience, and the observation that more and more courts are adopting e-filing rules based upon PDF, the advantage seems more real than imagined.

After my experience filing a brief on CD-ROM with the 11th Circuit, I decided to create my own e-filing web site, www.CourtCD.com. When I found that other attorneys were interested in utilizing a service that produced briefs for e-filing appeals, I began offering this service to other appellate practitioners nationwide.

E-Filing Resources on the Internet

There are a number of sites which provide a wealth of information regarding the PDF format. Adobe.com, the maker of Acrobat®, is the first choice, but there are also www.planetPDF.com, www.purePDF.com, and www.PDFzone.com, which provide extensive help, tips, and third-party hardware and software plug-ins to assist anyone creating PDF files. Regarding e-filing, www.llrx.com is probably the single best resource for articles and information on this growing field.

Federal Appellate Court Rules on E-Filing

Appeals Court States Included E-Filing Rule E-Filing Provisions
United States Supreme Court No Rule
Federal Rules of Appellate Procedure FRAP 25(a)(2)(D) A court of appeals may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules.
1st Circuit Maine, New Hampshire, Massachusetts, Rhode Island, Puerto Rico Local Rule 32.1 Acrobat Filing Permitted. CD-ROM filing in Adobe Acrobat permitted without prior notice to other parties if all parties are represented by counsel (if not all parties have counsel, e-filing on consent, court approval, or if submission includes all briefs and appendices).
2nd Circuit Vermont, New York, Connecticut No Local Rule
3rd Circuit New Jersey, Pennsylvania, Delaware, Virgin Islands No Local Rule
4th Circuit Maryland, Virginia, West Virginia, North Carolina, South Carolina
5th Circuit Louisiana, Texas, Mississippi No Local Rule
6th Circuit Michigan, Ohio, Kentucky, Tennessee No Local Rule
7th Circuit Wisconsin, Illinois, Indiana No Local Rule
8th Circuit Minnesota, Nebraska, Missouri, Arkansas, North Dakota, South Dakota, Iowa Local Rule 25A General rule permitting e-filing of any document “[i]n cases or classes of cases as the clerk of court may select…”.
9th Circuit Montana, Idaho, Washington, Oregon, California, Nevada, Arizona, Alaska, Hawaii, Northern Mariana Islands, Guam
10th Circuit Wyoming, Utah, Colorado, Kansas, Oklahoma, New Mexico No Local Rule
11th Circuit Georgia, Alabama, Florida 11th Cir. R. 31-5 Acrobat Filing Only. CD-ROM filing in Adobe Acrobat permitted without prior notice to other parties if no parties are pro se, and then only with written consent of all parties.
D.C. Circuit No Local Rule

State Appellate Court Rules on E-Filing

State Appeals Courts E-Filing Rule E-Filing Provisions
Florida Florida Supreme Court Proposed Rule 2.090 Any court or clerk may accept, transform, file, or store electronic documents, and may extend the hours of access or increase the page limitations set forth in the rule.
North Carolina North Carolina Rules of Appellate Procedure Rule 26 The e-filing of all documents may be accomplished by the use of the electronic filing site at www.ncappellatecourts.org. A document filed by use of the official electronic web site is deemed filed as of the time that the document is received electronically.
Ontario (Canada) Ontario Rules of Civil Procedure Parties are required to file electronic versions of factums and transcripts in civil appeals. The Court encourages parties also to file electronic versions of factums and transcripts in criminal appeals and in criminal and civil motions.
Pennsylvania Pennsylvania Rules of Civil Procedure Rule 205.4 Party may file a legal paper with Court by electronic filing if electronic filing permitted by general rule, rule of Court, or special order of court.
Texas Texas Rules of Appellate Procedure The comment now references Tex. Gov’t Code 51.801-.807, allowing electronic filing. TRAP 9 (comment).
Washington Washington Rules of Appellate Procedure 10.4 Electronic filing prohibited. The filing of briefs and other papers is only permitted in printed form.
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