Enhancing efficiencies in the appellate process through technology.

• Author: Delehanty, Joseph
• Position: Performance-Focused Technology

PART 1. INTRODUCTION

Reducing the cost of appeals in terms of both time and money is essential to the future of all appellate practitioners, and ultimately, to the precedent produced by appellate courts. Despite reports documenting significant increases in the volume of lawsuits following the economic downturn that was in full swing by 2008, (1) particularly in areas such as mortgage foreclosures and bankruptcies, by 2010 fewer appellate decisions were issued than in previous years. (2) At first glance, a lowered volume of appellate litigation may seem desirable, but upon closer inspection, decreased appellate volume appears to be linked to the economic downturn and the increase in the financial and temporal costs of pursuing appeals that may put them out of reach for all but the country's largest corporations. (3) Fewer appeals, and less precedent, may erode public confidence in the legal system.

With that reality as background, this article explores some of the benefits of technology and discusses specific forms of technology that can be used to increase efficiency and likely reduce costs of appeals. Empirical data regarding the correlation between improved efficiency and cost-savings through technology and enhanced delivery of appellate services by practitioners and courts is scarce; however, the substance of this article is based upon experiences by practitioners and observations from within appellate courts from current and former staff members.

Few things are certain and a familiar old adage might need some adjustment for the future: The top two certainties will be taxes and technology. Technological innovations are catalysts driving change in and, ultimately, improvement of the appellate process. (4) These new tools create opportunities for more streamlined appellate processes and reduce the considerable expense of appeals, which benefits practitioners, courts, and, most importantly, the parties and the public. (5) Cost reduction contributes to the overall goals of promoting confidence in the legal system, efficiency for practitioners and courts, and accessibility for litigants. (6)

It is important to note that reducing costs for appeals or any aspect of attorney, law firm, and court work through technology necessarily assumes some level of technological infrastructure and knowledge. The inherent generational gaps in technology aptitude will subside in coming years; however, gone are the days when practitioners, law-firm managers, and court managers can place technology matters on the back burner and pass infrastructure building on to the next generation of leaders. (7)

Each practitioner and court should evaluate the various costs within the appellate process and the best means to effect cost savings and reduced appeal time. This article focuses on four primary elements of the appellate process that present cost-savings opportunities through technology: practitioner expertise and efficiency, research, court filings, and oral argument.

PART 2. APPEALS ARE NOT "SECOND VERSE, SAME AS THE FIRST"

An appellate practitioner has unique and specific skills. The most important aspects of the appellate lawyer's role involve the exercises of legal judgment, research, analysis, and writing that go into crafting an effective appellate brief; the appellate lawyer takes the factual record as it was created in the trial court and must weed through it to glean the factual predicates most favorable to his or her legal arguments, subject to the constraints that may be imposed by the applicable standard of review. (8)

The specific and unique skills of an appellate litigator are little used within a trial practice. Therefore, a prudent and successful trial litigator may find her experience inapplicable to a client's needs upon appeal. Indeed, Judge Aldisert has noted that "appellate advocacy is specialized work" that "draws upon talents and skills which are far different from those utilized in other facets of practicing law." (9) Judge Silberman shares that view: "[T]he skills needed for effective appellate advocacy are not always found--indeed, perhaps, are rarely found--in good trial lawyers." (10)

Unlike trial counsel who must convince a jury, an appellate litigator labors to convince the members of an appellate court. Whereas a jury member may be more interested in factual interpretation, an appellate judge has a keen interest in probing the intricacies of the law and expects to receive polished briefs that carefully weave together the evidence at trial and the law. (11)

An appellate practitioner also plays an integral role in determining the merits of an appeal. A trial practitioner contemplates her cases, sometimes for years, and once a final judgment has been rendered, it may become difficult for an adept trial practitioner to separate herself from these necessary arguments. An appellate practitioner provides a new set of eyes and ears, which is essential in determining the most successful appellate strategy and whether an appeal is in the client's best interests.

An assessment that an appellate determination could greatly benefit a client does not always result in an appeal, much less a final determination on appeal. Important legal issues may not be appealed in some circumstances because the client cannot afford the expense or a protracted period of time waiting for a final decision. (12)

Section 2.1. The Practitioner's Technology' Toolbox

This section includes various examples of best practices and new techniques in keeping with an overarching theme of cost savings, while at the same time referencing innovations most practitioners and courts have yet to fully implement. All practitioners, from those in the largest firms to the solo practitioner, are feeling the crunch of the changing legal market, (13) and as a community of professionals, practitioners should view this changing world as an opportunity to grow and embrace many of the innovations that other industries have already made commonplace. (14)

Section 2.1.1. Internal Organization

Various tools are available to help practitioners efficiently allocate time and, in effect, lower costs, as well as increase practitioners' exposure to new legal developments and trends. Many case-management systems or practice-management systems and virtual assistants can relieve much of the stress caused by timekeeping and diary writing. Numerous websites compare the relative virtues of these organizational tools and their integration with practitioners' current technology. (15) A sampling of the case-management systems most commonly utilized by attorneys in private practice includes:

* Abacus, http://www.abacuslaw.com;

* Amicus, http://amicusattomey.com;

* Clio, http://www.goclio.com;

* My Case, http://www.mycase.com;

* Rocket Matter, http://www.rocketmatter.com; and

* TimeMatters, http://www.lexisnexis.com/law-firmpractice-management/time-matters.

Practitioners planning to add such technology to their office tools must assess which will best fulfill their requirements, and whether web- and cloud-based systems or server-based systems will provide the best solutions for their practices.

Section 2.1.2. Common Add-Ons

In addition to practice management, cloud computing offers significant innovations that can improve document management, reduce the costs of document storage, and increase the ease of practitioners' access to file contents. (16) With cloud computing, a practitioner with an Internet connection may access documents from different devices and from multiple locations. Low-cost document storage is another aspect of cloud computing. Through entities such as Dropbox, a small fee purchases gigabytes of possible storage space available from any device and in any location so long as an Internet connection is available.

Section 2.1.3. Practitioners--Optimize the Technology Currently Used in Practice

Simply purchasing what seems to be the correct software and licenses is not enough, however. Many practitioners are not well versed in the intricacies of the software employed in their practices. Such practitioners would greatly benefit from training and education in the use of their software in order to better leverage their time and expertise into polished work product. With a little training and use of Microsoft's Office Suite (including Word, Excel, and PowerPoint) or Adobe Acrobat, practitioners can create and format professional documents and briefs suitable for both paper and electronic filing. Proficient practitioners can automatically generate tables of contents or tables of authorities in Word, or use headings, formulas, charts and graphs in Excel to provide strong visual figures or exhibits in support of their legal claims. Even practitioners without the time for formal training in these essential types of software will find that step-by-step instructions are quickly accessible through an Internet search.

In addition, technology benefits practitioners in ways far beyond providing better document-creation and practice-management software or more efficient document-storage solutions: It presents connected practitioners with easier access to new legal trends and developments. Technological awareness allows practitioners to work more efficiently and offer more choices and options to their clients. While the term "connected" is, admittedly, a broad one, it is purposely used here to reflect myriad ways in which a practitioner can develop her practice and skills. And that skill development will not necessarily require significant time. Resources in the local legal or appellate community may include various blogs supported by individual attorneys or local bar associations. (17) On the national level, the American Bar Association hosts an annual TechShow and Expo at which various vendors, developers and practitioners highlight recent advances in legal technology. (18)

PART 3. RESEARCH: LEGAL ARCHAEOLOGY IN THE DIGITAL AGE

Another major expense to practitioners and...