Appeals court has a surprise requirement:
‘bookmarked’ digital briefs must be filed

By Alan Cooper, Virginia Lawyers Weekly – 11/23/2010

Say what?

That’s what you might hear from a criminal defense lawyer who reads the Virginia Court of Appeals order granting his appeal, or the domestic relations lawyer who reads the appellate court’s acknowledgement that it has received the case record.

These court documents tell the attorneys they now must file a “Digital Brief Package,” along with instructions about how to do it.

The appellate court rolled out the digital requirement in July 2009, with little fanfare and little resistance from lawyers. The requirement is not mentioned in the recently amended rules of appellate procedure, acknowledges John Vollino, chief deputy clerk of the court of appeals.

“We ask that they comply … and we’ve never had anybody push back,” Vollino said. Pro se litigants are exempted from the requirement.

The court requires the contents of the appellate brief and the appendix to be “bookmarked,” so the judge can jump quickly from the table of contents or table of citations to the body of the brief or the appendix. The instructions also are available on the court’s website at www.courts.state.va.us/courts/cav.

Vollino said the court had some concern that attorneys would object to the procedure, but “it seems that it has been well received. … It was almost a non-event.”

After reading the court’s instructions, though, lawyers – especially those who don’t do much appellate work – may be calling the companies that specialize in preparing appellate briefs.

Kelly Reese of The LEX Group and Cameron Gilbert and Cate Simpson from Counsel Press said their companies routinely call attorneys after their appeals have been granted to offer their services in preparing the package. Reese says many of those attorneys are unaware of the practice when she calls and are quite happy to have her put the package together for them.

When the court first notified attorneys of the requirement in the order granting the appeal or the acknowledgement of the record, “it worked for us because nobody had any clue what [the court was] talking about,” Reese said. “There are still attorneys out there that have no clue that they have to file one.”

Preparing the package requires Adobe Acrobat or a similar program that creates or converts documents in the portable digital format (PDF) and puts them all in one file. “This is a very specialized program,” said Simpson. “Even people who are very computer savvy may not know how to navigate Adobe and do this particular type of work.”

They may think that they can just put a PDF of their brief on the disk, but much more is required, she said.

NitroPDF is a software package that’s cheaper than Adobe and may work for the digital package, according to Bristol lawyer Steven R. Minor, who has commented on the digital requirement in his SW Virginia Law Blog.

“Peace of mind has a lot of value,” Gilbert said, because the companies guarantee compliance with the procedure.

Counsel Press is a subsidiary of The Dolan Company, which also is the parent of Virginia Lawyers Weekly.

The appellant must file four printed copies of the brief with a CD accompanying each brief. One copy stays in the clerk’s office and the other three are distributed to the three judges who will hear the appeal.

“It’s a traveling court,” Reese noted, so it’s an advantage for the judges to be able to hear cases around the state without lugging appendices around with them.

“It’s part of the way the world’s going,” Vollino said. “We’re trying to get it up and ready for when everything is electronic.”

The state’s two appellate courts are behind the curve in that regard. Both are still using Windows 2000 on their servers, and the instructions for the digital package have a special section noting that the system is incompatible with many of the recent programs for creating CDs.

The appellate courts are scheduled to replace the outdated operating system with Windows 7 within the next few months.

The Supreme Court of Virginia requires parties to file their briefs in electronic format in addition to providing paper copies but does not demand a package of the type specified by the intermediate court, said Supreme Court Clerk Patricia L. Harrington.

Virginia Beach appellate specialist L. Steven Emmert said he likes to go a step beyond bookmarking and provide hyperlinks to key cases and testimony. As an example, a judge can click on the blue text showing a hyperlink and be taken to the case or even a particular cite.

That requires more work for Emmert and Reese, who usually prepares his briefs for filing.  Emmert has to copy and scan the document into PDF format and send it to Reese with instructions as to where the hyperlink to it should be placed.

He said he has been using hyperlinks since November 2007, “and I’ve been preaching the gospel to as many appellate attorneys as will listen.”

A hyperlink creates – or undermines – the credibility of the attorney because it emphasizes that the case “says exactly what I cite it for,” Emmert said.

“Any judge who’s seen one of these will wish that every brief came in like this,” he added.

Reese said she prepares relatively few hyperlinked CDs for other attorneys, and many of them are referrals from Emmert when she does so.

Gilbert, who is director of CP Legal Research Group and familiar with electronic filing projects in other states, agreed that a hyperlinked CD is a step ahead of simply preparing a bookmarked PDF.

His company offers what it calls an e-brief, but that service is more popular in other states and is not often requested in Virginia, he said.

“It’s a powerful presentation when used correctly,” he said. “If you can do it and your opponent doesn’t, it can be an advantage.”

Like Vollino, Gilbert sees bookmarking by the Court of Appeals as one more step on the way to full electronic filing in the state, similar to Virginia’s federal courts.

“The transition is always painful, but once you’re there, it’s a more convenient process,” he said.