According to the Texas Supreme Court’s online calendar (here), today is the last conference of the Justices until August 16th. We can expect any opinions approved today to be released with this Friday’s orders list, along with (perhaps) more petitions granted review.

The Court hasn’t yet announced an argument calendar for the fall. If you are counsel in a case that’s already been granted review, and you have a major conflict this fall, this might be a last chance to submit a vacation letter.

I’ve just ordered my copy of the new (and 96 pages longer) Bluebook citation guide.

I ordered from Amazon; if you like paying for shipping, you can go directly to the source.

The first mention I saw of the new edition was in a blog post titled “The Bluebook (19th ed.): Something I don’t need to practice law” by Raymond Ward at the (new) legal writer.

His point was that most practicing lawyers only need to know a very small slice of what’s in the Bluebook — “Everything I need to know to cite those sources should fit on the front and back of one page.”

He’s right if your practice only involves one jurisdiction’s law. For me, it’s worthwhile to have a guide to those states and more obscure sources I don’t see everyday.

Citing Internet Sources

Something tells me, however, that I’ll continue to be disappointed at the citation forms chosen for internet sources. This blog post gives an example of one form (for podcasts) that leaves me baffled. The example they quote from new Rule 18.7.3:

Splitting Verbs, Grammar Girl’s Quick and Dirty Tips for Better Writing (Feb. 26, 2009) (downloaded using iTunes).

That’s awful — like saying “I bought it at Barnes & Noble”. That someone once downloaded a podcast episode from iTunes doesn’t mean that it’s still available there. Some podcasts only keep a few most recent episodes listed on iTunes. (( For example, the This American Life podcast entry lists only its single most recent episode. As I check today, the Grammar Girl listing goes back to its episode number 122, so the 121 previous episodes are no longer on the iTunes shelves. ))

The better source for this podcast episode? It’s available on the publisher’s website. There is a URL for a transcript of this “Splitting Verbs” episode, complete with an embedded audio version, a YouTube clip of John Roberts and Obama un-splitting a verb in the oath of office, and footnotes: http://grammar.quickanddirtytips.com/splitting-verbs.aspx. Few podcasts go to quite this much trouble, but most publish a webpage or blog post attaching the audio file itself. (( At its most technological root, that’s what a podcast is — an RSS newsfeed with an audio file attached. ))

URLs are ugly in print, but they are “uniform resource locators.” They are built to do this job with precision. And an ugly citation that works is far superior to a pretty one that doesn’t. (( In fairness, there might be a divergence in how law reviews should cite the internet compared to practitioners. For practitioners, the half-life of a brief is very short; it is important that the court be able to follow along while deciding your case — and much more important that the cite be direct and work smoothly — but posterity is not your problem. For law reviews, on the other hand, the printed volumes that sit on a library shelf are the point. Editors might assume that whatever citation system they choose today will be deprecated before anyone ever bothers to try to check their work. ))

This is why I will open to the internet-related section of the new Bluebook with some apprehension, when it arrives.

But I always do look forward to seeing which new case-name abbreviations have been elevated for inclusion in table T.6….

I’ll be speaking today with Blake Hawthorne at the UT State and Federal Appeals Conference about some recent changes in electronic briefing rules and what they mean for appellate advocacy.

The paper that goes with our presentation is posted here. It covers the big picture, as well as some practical tips for improving your electronic briefs. I’m also posting a PDF of the slides from our talk.

If you’re interested in a how-to guide, last week I posted a working paper about how to make simple electronic briefs. It offers my own suggested workflow through the major steps of the process, as well as some tips about redacting safely.

The blog has covered the Texas Supreme Court’s new rules for electronic briefs, including a few pointers on what’s likely to trip you up. (( The Court made a few tweaks to the rule (primarily about emailed copies) effective May 31. ))

Today, I’m posting my own guide about how to make electronic briefs for the Texas Supreme Court. You can access the most current version through this link. (( I chose to host the guide at Google Docs for easy updating. You don’t need an account to view the file. And if you want to download a PDF version, you can do so under the “File” menu on the Google Docs menu bar. ))

My suggested workflow leaves room for the more advanced (and optional) steps of making internal bookmarks and simple hyperlinks — both of which are permitted within the Texas Supreme Court order. I also offer a little advice about redacting sensitive information from your PDF with confidence.

Upcoming Talk

Next week, I’ll be speaking with Blake Hawthorne at the UT Conference on State and Federal Appeals about how electronic briefs fit into appellate practice. It’s a short talk, but we will try to cover the big picture and offer some practical advice.

In the spirit of Kendall Gray’s nice series of blog posts previewing his panel on oral advocacy, I’d also like to know what’s on your mind before the conference. How do you see electronic briefs affecting written advocacy?

The Texas Supreme Court has issued a new order to amend and replace its original order about e-filing, which I wrote about in February. The changes go into effect May 31, 2010.

The Court is taking two small steps toward electronic notifications being sent to counsel in lieu of the postcards and one-page letters that are common today:

• Counsel making a filing must provide an email address at which they are willing to receive notices from the Court.

• Lead counsel are also now required to register for notifications with the Casemail system operated by the Office of Court Administration.

According to Blake A. Hawthorne, the Clerk of the Court, “We hope this order further helps attorneys and the Court adjust to electronic filing, which the Office of Court Administration projects will be available for the Supreme Court and the Houston courts of appeals in August. There currently are no plans to eliminate paper notices, but the Court is moving in that direction in order to reduce expenses.”

The Court is also requiring a small but important advance in professional courtesy (and perhaps toward e-service):

• All electronic briefs submitted to the Court must, at the same time, be emailed to other counsel in the case.

The above changes are effective May 31, 2010, but there’s no reason you can’t comply with them today.

In addition, effective May 31, 2010 the Court will be reducing the number of paper copies required of some filings. All motions — including motions for rehearing — will only need an original and one copy. (This relaxed number of paper copies applies to motions for extension of time as well, even though they do not qualify for electronic courtesy copies.)

Yesterday, the Texas Supreme Court approved a new local rule for the Third Court (covering Austin) that provides a framework for electronic district court records. The documents in the appellate record can now be submitted as scanned, word-searchable PDFs.

The order is here.

Last week, the Austin Bar Association sponsored “An Evening with the Supreme Court of Texas,” featuring a panel discussion in which six of the Justices participated.

The event was captured on video and is available here. Todd Smith also published a writeup of the event.

The Court discussed some of the hot new topics of appellate law, along with some of the perennial answers that evolve as the Justices do.

I’ve jotted down some highlights. (( I wish I had been able to attend live. But one side effect of me having to watch the program on video is that I could take down these notes. About the quotations: What appears here is what I typed while watching the video at live speed, so I may have missed a few nuances. I believe these quotations are faithful to the spirit of what was said, and I’d be happy to make any tweaks needed to make them match more perfectly. ))

With several Justices using a “petition pool”, should advocates change how they write their petitions?

Justice O’Neill took this question. She explained that currently three Justices participate: Justice Johnson, Justice Willett, and herself. Within the pool, the law clerks summarize the petitions before the Justices review them. The summaries are available to all chambers.

She took pains to distinguish this from the federal “cert pool” because the focus here is to summarize the petition, not to recommend how it should be disposed.

In the end, having these summaries lets her “concentrate” on the petitions that warrant the most attention and “streamline” her consideration of those that do not. If anything, “[t]he tendency of law clerks is to think every case is important.”

She ended: “Always write your petitions to the judge.”

What should advocates make of the so-called “shadow docket”?

Several Justices participated in this discussion. The answers focused on the petitions that were “linked” in some way to another pending case on the docket, usually because they had an overlapping issue.

Justice Hecht discussed the new safeguards that the Court takes. When it appears there might be a reason to hold up a petition, the Court asks the Justice with responsibility for the supposedly-linked case to weigh in with a recommendation.

The Justices of course have better information that we do on the outside about the reasons why each petition is being held. But, as Chief Justice Jefferson explained, that should not necessarily make a hold mysterious to the parties involved: “The vast majority of those cases really aren’t in a shadow,” because it’s pretty obvious that there is a key issue in your case linked to another one on the docket. He gave as examples the sue-and-be-sued cases that accumulated while the Court considered Tooke and the flurry of similar expert-witness cases.

The Court is receptive to counsel suggesting that the Court “link” or “de-link” particular cases. It did not sound like the Court wanted that to be in a formal motion. (Those are just “carried with the case,” as noted by Justice Hecht, which means the Court would likely deny it as moot when the case is over.)

The Chief suggested that advocates “become a student of the docket.” He noted how helpful it can be when a petition for review identifies other pending petitions that are related. He recommends making these connections explicit. And he suggested that this can be a place for effective advocacy, to perhaps explain why your petition is a “better case” to reach the same issue or why one petition “has other complexities” that also need the Court’s attention.

Has there been a surge in recusal motions after Caperton?

The Court has not seen one, either itself or among the lower courts. Justice Hecht credits the recusal procedures that are already in place for the lower courts, which provide a quick way for a regional administrative judge to resolve those motions.

What happens when a party advances too many issues?

Everyone knows the basic answers that too many issues mean you have too few pages for the ones that matter or that not being able to discard weak issues hurts your credibility as an advocate. That’s not what the Justices talked about here.

Chief Justice Jefferson pointed out how having more issues can undermine a petition by suggesting too many ways that a court with discretionary review (like the Texas Supreme Court) might fail to reach the one truly interesting and grant-worthy issue. He related that when he’s reading a petition, he’s “sort of projecting ‘how is this gong to play out if an opinion needs to be written’.” With that in mind, having 15 issues becomes a serious problem. Some of those issues are just unimportant, and it’s easier to imagine the Court never reaching the ones important to the jurisprudence or even reaching a fragmented decision, where nothing gets five votes except the judgment. More issues “makes it less likely I’m going to be a vote for a grant.”

His view is that “[t]hree is about the most that a good lawyer will present.”

A response to the petition is optional until requested. Should a party waive their response or file immediatley?

The Chief Justice explained how his “thinking about that had evolved.” He used to advise people that waiving would let the Justices form a first impression of the case with only one side of the story, and that the “ball gets rolling” toward a grant before they could be heard.

But now, he explained, he finds that’s not really the case. The Court’s internal procedures minimize the chance that the Court would discuss your case before the response is requested. With that in mind, “My recommendation would be that you don’t need to [file a response] in every case.”

He did note that waiving a response adds time to considering your case. If it’s a case where you are fairly certain that a response would be requested anyway, you can expedite things by filing the response without waiting for a request.

What about reply briefs at the petition stage?

Justice Hecht “can’t imagine not wanting to have the last word.” On the other hand, “A reply that says ‘what I said in my petition’ is not helpful and is irritating.”

The Court’s practice is now to wait for the reply briefs, even at the petition stage. The clerk’s office can now grant extensions of up to 15 days before the file will be forwarded to the Court.

Beginning today, Texas Supreme Court litigants are required to file electronic versions of their briefs along with their paper copies.

This is not a true e-filing system because it does not replace paper briefs. Rather, the Texas Supreme Court is requiring that PDFs supplement the paper briefs. This will let the Court more easily publish those PDFs to the public. And it will permit the Justices and their staff to work with briefs more easily when evaluating petitions and writing opinions.

The Court’s order is in this PDF. I wrote about it in this blog post. Before now, the Court only asked for PDFs in a fraction of cases and only several months into the review process. It was also willing to accept PDFs that were little more than scanned pictures of briefs, which were not very useful.

That changes beginning today.

Read more thoughts about today’s order