Tuesday, May 25, 2004

Creating Electronic Briefs

Yesterday, I read this post in the PDF for Lawyers blog, which led me to an article by Dennis Kennedy called Putting PDF and Adobe Acrobat into Your Tech Toolbox, which contains a link to this 2002 article by David L. Masters on how to create an electronic brief using Adobe Acrobat. Even though the article is from 2002, it is still very relevant and useful. I wish I would have seen it back in February when I created my first electronic brief by trial and error. Mr. Masters does an excellent job of outlining the steps.

As I was drafting my brief, I jotted down the steps so I could share them with other lawyers. Mr. Masters' article covers most of the ground, and I won't repeat what he has done. But I do have a few tidbits to offer that supplements his advice.

Most attorneys know about PDFs. (If you don't take a look at this article in LLRX.) But very few attorneys seem to be taking full advantage of all that PDF has to offer. As the Masters article explains, the PDF format allows attorneys to create electronic "cyberbriefs" or "e-briefs" that hyperlink citations to all exhibits and legal authorities. Even though I knew about this capability of PDFs for years, I had no idea whether it was difficult or easy.

The motion I was working on in February was summary judgment motion in federal court that referenced about 1,300 pages of exhibits. With such a large amount of information for the court to wade through, it seemed like the perfect opportunity to make life easier for the judge and his law clerk by providing an electronic brief in addition to our paper brief. Although the process is not difficult, it's too much work for minor motions, but for motions like this, it is definitely worth it.

In the way of system requirements, here's what I was using:
1. MS Word 2000
2. Adobe Acrobat, full version (we use Acrobat 6.0 Standard, but 5.0 will work as well).
3. Konica 7165 high volume scanner/copier
4. CD-R drive and CD-R media.

Here are my additional tips:

The only time-saving tip I can offer for this step is to download your case authority in PDF instead of in a word processor format or (worse yet) printing to paper. Lexis and Westlaw both offer a PDF download option. If you don't subscribe to those services, you can convert your cases to PDF by printing to the Adobe PDF "paperless printer" or use the Acrobat Distiller as Mr. Masters explains. Paper cases can be scanned and converted to PDF.

The brief.
Before converting your brief to PDF, you will want to take the timesaving step of coloring your hyperlinks in your word processor. In PDF, hyperlinked text is not automatically changed to blue. So, if you want your hyperlinks to stand out visually, it's up to you to make the changes yourself. Although it is possible to change the color of text in Acrobat using the touch up text tool, it is a frustrating, time-consuming process. So before conversion, go through your brief and change the text color to blue for every cite you intend to hyperlink. Blue is the standard, universally-recognized hyperlink color, so I recommend using it. Once the text color has been changed for your future links, convert the brief to PDF by "printing" to the Adobe PDF driver and saving the file to your hard drive.

Linking in Acrobat.
When creating your links in Acrobat, set the linked document to use “inherit zoom.” Adobe Acrobat allows you to choose the zoom level of the page you are linking to. Most of the time, you will want to set Acrobat to inherit the zoom of the previous page. So, for instance, if the reader has the zoom set at 75%, when he clicks on your hyperlink to another part of the PDF, the zoom won’t instantly change to 100%. The reader can always change the zoom if he or she wants to, but it is annoying for the zoom to change on you automatically.

This next tip is for folks who are creating an all-inclusive single PDF file with the brief and all authority included. Write down the PDF page numbers for the first numbered page of all the depositions you plan to cite. When you are submitting a brief on CD, there is no reason not to include an entire deposition transcript rather than just selected pages. Believe it or not, it is actually easier to link to a deposition when all of the pages are scanned and present in your PDF. Whenever you create an internal hyperlink in a PDF, you must type in the target PDF page. (By "you," I mean you, your paralegal or secretary. Linking is a good job for support staff). For example, page 201 of a certain deposition may be PDF page 352. Instead of scrolling to search for every page of a deposition you cite, you can just keep track of the first PDF page number of each deposition transcript. So, for example, if Exhibit C is a deposition, and page one of that deposition begins on PDF page 85, you would write down on a scrap piece of paper, “Smith depo, Ex. C, is +85.” That way, when you go to link a page in that deposition, you will know to add 85 to the deposition page number. So, when you go to create a hyperlink for the cite “Smith Depo., Ex. C at 201” you will link it to PDF page 286 (201 plus 85). This method is much easier than scrolling through your PDF to find the page number for every cite to that transcript.

Write descriptive bookmarks. Your electronic brief will look much more professional if you bookmark a case with its full citation rather than just “Smith case.” It is also helpful for the judge or clerk to see the entire case cite just as she would see it in a table of authorities. Bookmarks should also be organized in a hierarchical fashion. For example, if you cite a deposition as Exhibit A, and the deposition has its own exhibits 1-15, put the bookmarks to Exhibits 1-15 beneath Exhibit A in the bookmark hierarchy. This will keep your bookmarks neat and organized in an outline fashion.

Replacing pages.
If you find a mistake on a page, use the replace function. When you create a cyberbrief, you will review your brief with a fine-tooth comb and you will notice more mistakes. Don’t panic, even if you see a mistake you want to correct and you have already linked the page. If it is a minor correction that will not change the page significantly, chances are you can use the replace page command. Simply correct the page in your word processor, print the corrected page to PDF, then use the replace command to remove the old page and insert the new one, preserving all of your links. Here is a tip sheet on using the replace command. If the mistake is just a minor typo such an incorrect page reference, you might even be able to use the touch up text tool.

CD labeling.
Do not wait until the last minute to burn CDs and create your CD labels. Although they do not have to be fancy, your CD labels should at least contain the critical identifying information about you and your case. As a rule of thumb, label the CD with the same information you would see on a docket sheet or on the first page of your motion (case name, civil action no., date, title of document) along with your contact information. I recommend labeling the CDs and not just the jewel cases because, as you likely know, CDs can get separated from their cases forever. Use the thin jewel cases and don't include a paper insert. Your CD label will show through, and there is no "spine" to label on the case.

Compliance with court rules.
Always check the court’s local rules regarding electronic submissions to make sure you are in compliance. Even when local court rules do not address electronic briefs, most courts probably will not refuse a brief submitted on CD as long as a paper brief is submitted as well. Appellate Courts seem to be more picky about such submissions than trial courts. The CD copy, however, is just a “convenience” copy, not the official copy of your submission. It may or may not ever be opened. Also, you’ll want to check with the clerks’ office to see if filing is required. Certainly, if it is provided to the judge, it should be served on the other parties' counsel in the case.

I am happy to say our motion for summary judgment carried the day. I have no idea if it was because we filed an electronic version of it, but I like to think so. Certainly, it didn't hurt.


mia said...

Very nice work on your blog, It was fun to read! I am still not done reading everything, but I bookmarked you! I really like reading about lawyers and I even have an lawyers secrets blog if you want some more content to discuss.

tj said...

It appears that there will be an easier way soon to create electronic briefs. Check etrialinc.com, they have created an automated tool coming soon. I can't wait.

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Anonymous said...

Thank you Brian, Very good post for a paralegal working for a constitutional legal organization. Thanks for a very good read. (I was surprised by your fan base, but thanks, gea.)