Electronic Briefs - When to Use Them

When to Use Hyperlinked Briefs

by Deborah Ausburn, J.D.

Electronic briefs with hyperlinks are incredibly cool, but even the most ardent advocates will agree that not every motion needs a digital counterpart. When is a good time to use an electronic brief? As in all things legal, it depends on many factors, beginning with the definition of the term.

Types of Electronic Briefs

     The term "electronic briefs" can mean two separate things, depending on its context. Most court rules use the term to refer to simple digital versions filed along with the hard copy of the brief or motion.   Most courts that address the issue require the briefs to be converted from your word processing program to PDF (Portable Document Format), readable with the free Adobe Acrobat® Reader®.   This conversion is relatively simple, and can be done in-house with several different software programs. One of the more popular legal weblogs, PDF for Lawyers, has posted instructions here for converting briefs for electronic filing.

     Most vendors use the term "electronic briefs" to refer to digital briefs with hyperlinks added. Hyperlinks allow the court to use one mouse-click to access the exhibits and case law that the brief cites. The briefs usually are presented on a CD-ROM that includes digital versions of the appendix and any relevant case law. It is not difficult to create hyperlinks from the brief to any media that can be digitized, such as photographs, audio, or even videotaped depositions. You can create hyperlinked briefs in-house, but the process can be complicated.

     Briefs with hyperlinks undoubtedly are more versatile, more useful, and considerably more expensive" than simple PDF versions. Phansalkar v. Andersen, Weinroth & Co., L.P., 356 F3d. 188, 190 (2d Cir. 2004). There is no doubt that most judges prefer hyperlinked briefs. The question is when the hyperlinks are worth the extra trouble and expense. The answer to the question depends on several factors:

The Motion

     In my legal practice, I use hyperlinked briefs in three situations: (1) appellate briefs, (2) complicated trial briefs (i.e., motions for summary judgment), and (3) when I want to present video or audio clips.

     Hyperlinked briefs are most common in appellate practice, and generally are the easiest briefs to digitize. The record already has been set, and the issues narrowed down. Federal courts have been at the forefront of the e-filing trend, and the Court of Appeals for the Federal Circuit reportedly was the first court to accept a hyperlinked brief. Not surprisingly, that court also has the most specific rules governing hyperlinked briefs.

     At the trial level, hyperlinked briefs are very useful for complicated motions, such as motions for summary judgment. Hyperlinks are perfect for helping the judge navigate through a large factual record or legal argument.

     The final situation where I recommend hyperlinked briefs is when you want the court to see videotape or listen to audio. Kansas state court Judge Stephen Leben says, “Videotape excerpts, I can tell you, do make a more vivid impression than the cold transcripts do.” “A Brief Article on Electronic Briefs,” Court Review, Winter 2001, p. 45. With ordinary paper briefs, the only way to get video or audio tapes before the court is to file the VHS or audio cassettes, and then hope the judge (1) tracks down a television and video player or a cassette player, (2) is willing to search for the section that you are citing, and (3) manages to find it. With an electronic brief, the clip is as easy to locate as the transcript itself.

     Also remember the educational function of pretrial motions. I use electronic briefs in most of my motions in limine to exclude expert witnesses, for example, specifically because the video clips let the judge preview the expert’s testimony. My hope is that, even if I lose the motion, by the time of trial the judge will be as irritated with the expert as I am.

The Court

Cutting-edge technology is useless if the judge never turns on his or her computer. Fortunately, judicial clerks, particularly recent law school graduates, generally appreciate hyperlinked briefs. All federal districts courts, therefore, are good venues for electronic briefs. State trial courts vary more widely.

Also double-check with the clerk’s office. Few court rules specifically address hyperlinked briefs, but most courts nevertheless accept them. When talking to the court or the judge’s office, make clear that you will be filing hard copies of your motion and brief according to the normal procedure, and following that with a digital version. I use the term “courtesy copy” when explaining electronic briefs, and have never had one rejected.

The Trial Schedule

When on a tight schedule, with trial looming, lawyers tend to avoid new technology in favor of basic trial preparation. Tight deadlines, however, are the perfect time for electronic briefs. If the court is running short of time to consider all of your motions, it is very tempting for the judge to just send everything to the jury. A hyperlinked brief, by providing a clear and time-saving map of the case, will increase your chances of winning the motion or, at the very least, winning an evidentiary point during trial.

Electronic briefs with hyperlinks are an exciting way to focus the judge’s attention on your arguments and supporting facts. They can be cost-effective and always get more attention than an ordinary pleading. A well-done electronic brief can be the next best thing to sitting in the judge’s office and writing the opinion yourself.

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