I was puzzled the first time I saw opposing counsel attach a formal word-count certificate to a very simple one-page letter to a court. No word limits apply to those letters. (Don’t get any ideas!) So, why would that be required?

His reasoning was that the governing rule was a little unclear about what was required. At that time, it said “A computer-generated document must include a certificate … stating the number of words…” So, thinking like a good appellate lawyer, my opposing counsel included a certificate on all filed documents as a matter of course.

This week, the Texas Supreme Court has clarified the rule. Its short set of amendments to the word count rules now specifies that only those documents that are actually “subject to a word limit” need attach a certificate of compliance.

I will not be posting about the Friday orders list this week or next. You are on your own until June 22nd, when I return to the blog.

As blog readers know, the Texas state appellate courts are shifting toward electronic briefs. Unlike the federal system, the Texas rules permit advocates to make use of hyperlinks and encourage the use of internal bookmarks to ease navigation. The focus is on making the briefs more useful to the ultimate readers — the judges and law clerks who will use them to decide cases and write appellate opinions.

Last Thursday, I gave a presentation about electronic briefs with Blake Hawthorne at the UT Conference on State and Federal Appeals. We covered quite a bit of ground for a thirty-minute talk — the basics of how to make these briefs, some survey results from judges and staff members who have been using them for the past year, and some clips of video interviews with Texas Supreme Court Justices on the same subject.

See the video interviews and get the slide deck

So, how often do counsel botch an e-filing by leaving in redacted information?

Tim Lee has done a study of redaction failures using a nice-sized subset of the federal PACER database. More specifically, he looked at the documents donated to the “RECAP” database, assembled as volunteers donated copies of PACER filings as they downloaded them.

Tim wrote a program that analyzed each PDF file, looking for the tell-tale hand-drawn rectangles that are a hallmark of poor redaction.

In a sample size of 1.8 million PACER documents, he found about 2000 documents with these rectangles. He narrowed that set to documents where these rectangles sat on top of text — and after checking the best candidates by hand — found 194 with failed redactions. Most of those (“about 130”) were from commercial litigation. In addition to the redaction mistakes caught by this program, there were about 1700 other redaction failures that had been caught before the documents were donated to RECAP. (( Why so many? A large number of the RECAP documents had been donated by Carl Malamud, who spent some time trying to remove the sensitive information. )) An overall ratio of 1 redaction failure per 1000 filings seems pretty low to me. I am curious how many of those 1.8 million documents were scanned from paper rather than generated as native PDFs. Native PDFs can be more challenging to redact, and the newer federal rules require them.

How courts can avoid this problem going forward

Tim has graciously donated this code to the public domain. As things stand, it requires a little technical savvy. (( If you see the word “perl” and think of a dromedary, then you should have no problems. Otherwise, you might want to wait for someone to add an interface on top of these raw scripts. )) But it’s available to any court officials who might want to fold it into their e-filing systems or to anyone else who wants to build a more user-friendly interface.

How you can redact properly

Redaction is covered in the blog’s resources page about how to make e-briefs that satisfy the Texas rules. There is a deeper discussion about strategies for redaction in the document called “Workflow for E-Briefs,” beginning at page 15 of the PDF.

If you’ve been following the blog, you know that Texas appellate courts are moving into the e-filing era.

For trial lawyers, this may seem like no big deal. “How hard can it be to make a basic PDF?” But as both sides of the appellate divide know, trial briefs are not used like appellate briefs. Appellate briefs become dog-eared research tools for the law clerks and judges as they write the Court’s opinions. The Texas move toward appellate e-filing seems driven by a desire to make judges’ and law clerks’ lives better, and the new rules permit enhancements such as internal bookmarks and hyperlinks. (( The federal model started the other way, with its origin in large asbestos dockets. The U.S. Supreme Court still has nothing approaching e-filing. Although some Justices use electronic devices to read briefs — with an ideological split between Kindles and iPads — the briefs themselves are just dead images of the printed booklets. ))

Last year, I spoke with Blake Hawthorne about the new electronic brief requirements at the Texas Supreme Court. This year, we’re back to give a more in-depth talk, with some practical tips and — here’s why I’m writing this post today — some practical answers from Texas appellate judges about how they’re using your briefs, what they find helpful and appreciate seeing, and what they find to be a waste of time or even a distraction.

So what are your questions? What issues have come up in your firm as you try to decide how to approach this process? If you’re a skeptic of this change, what questions might change your mind — or do you think might persuade the rest of us if only we knew the answer?

Please feel free to send me an email or give me a call, if you’d rather have a little privacy for your questions.

According to a notice posted on the Texas Supreme Court’s website, true electronic filing of appellate briefs is now available in that court:

Effective March 28, 2011, you may electronically file documents, pay your fees, and serve opposing counsel using the Texas.gov electronic filing system.

Using this e-filing system is, at this time, still voluntary. I look forward to trying it out.

Some paper is still required

Please be aware that the electronic-filing order still requires counsel to send two paper copies of the brief to the clerk’s office.

As things stand, counsel in the Texas Supreme Court have two choices — both of which require some mix between electronic and paper copies:

• Use the electronic-filing portal to file and serve a PDF that counts as the official original, plus submit two paper copies to the clerk’s office.

• Submit an original paper version plus eleven more paper copies to the clerk’s office, serve them on opposing counsel, and also submit the required PDF by email to the clerk’s office.

So while this new e-filing order isn’t strictly paperless, it is a big step in that direction. As a solo appellate lawyer, I certainly look forward to simplifying my workflow on the days briefs are due.

I got an email today from the Clerk of the Court noting that the voluntary e-filing the Court announced last week had hit a small technical problem with the Texas.gov system.

The program was supposed to start on March 14, 2011. This technical problem will, as I understand it, push the schedule back by a few weeks.

I’ll let you know when the voluntary e-filing goes online.

Until then, counsel are still required to submit an electronic version by email (as before), along with the required number of paper copies.

The Texas Supreme Court issued two sets of orders today related to e-filing of appellate briefs in Texas.

1. Effective March 14, 2011: In the Texas Supreme Court, parties now have a choice whether to make a traditional paper filing plus an e-brief, or whether instead to choose electronic filing through an approved provider and then submit just two copies (for most briefs). The acceptable format of an e-brief remains largely unchanged from before. For now, the e-filing is voluntary. (( If you go the traditional route, the e-brief is due the same day as the paper briefs are filed. If you go the e-filing route, your paper copies can be submitted the next day. )) You can get the order about SCOTX filings here.

2. In the courts of appeals, the Court has now brought standardization to what just a few weeks ago I noted was a quite confusing situation. Through an amendment to the Texas Rules of Appellate Procedure, there is now a standard local rule for courts of appeals to adopt if they want to accept courtesy e-briefs or to opt into the statewide e-filing system. You can get the order amending the Texas Rules of Appellate Procedure & setting out these form local rules here.

There may be a transition period as courts of appeals decide how they want to ease out of their own practices into these new local rules. (( Normally, courts of appeals must submit new local rules for formal approval by the Supreme Court. I assume that is also necessary if a court of appeals wants to adopt one of these form rules. )) But the new rules will make sorting things out much easier. Going forward, if a court of appeals accepts e-briefs, then you must prepare it in the same manner that you would for the Texas Supreme Court.

I’m sure that I will have more to say about these rules over time. For now, I just wanted to pass along the news.

Update: On March 1, 2011, the Texas Supreme Court issued some new rules designed to standardize these procedures.

In preparing for an upcoming CLE talk, I set out to compile a chart of the current e-brief rules in each of Texas’s fourteen intermediate courts of appeals. To do this, I went through each court’s website and published internal operating procedures (IOPs), where those were available.

Of the fourteen courts, twelve of their websites mention electronic briefs in some form. Among those:

• In three, an electronic brief is either required or made a strong suggestion: the Fifth, Tenth, and Fourteenth Courts.

• In three more, an electronic brief is requested: the Second, Third, and Seventh Courts.

• In four others, electronic briefs are accepted: the Fourth, Eighth, Ninth, and Thirteenth Courts.

• And two say that they don’t yet receive them: the Sixth and Eleventh Courts.

I’ve posted the detailed breakdown by court. (( Over time, I’d also like to get some clarification from a few of these courts; I think the websites might be lagging behind their current practices. ))

There are some differences under each court’s rules about what items they permit to be included in the PDF or on the CD-ROM. (The Tenth Court, notably, prohibits any record pages from being included. On the other hand, the Tenth Court — like the Texas Supreme Court — is already publishing these e-briefs online for the public. Its rule about record pages seems to reflect a concern about redacting sensitive material, which the Texas Supreme Court chose to address instead through a strict redaction policy.)

The language of these policies also varies with regard to hyperlinking. No courts prohibit internal bookmarks or hyperlinks within the document. Some courts say that external hyperlinks can only be pointed at resources that would have been proper appendix items under TRAP 38.

As the Texas appellate courts move closer to a statewide e-filing system, we can expect these rules to become more uniform. Until then, appellate lawyers who want to file electronic briefs will have to watch the local practices carefully. But the same e-brief techniques you use for the Texas Supreme Court should work just fine to create helpful briefs for these other courts as well.