July 2003

New Appellate Rule for CD-ROM Briefs

by Richard Lambe

Introduction
Effective December 5, 2002, the Washington State Supreme Court enacted Rule of Appellate Procedure 10.9, allowing parties to file electronic copies of their briefs on CD-ROM. This technology allows lawyers to combine their briefs with links to the record and case law, and makes it vastly easier to summarize and access potentially enormous amounts of information.

The Advantages of a CD-ROM Brief
Picture it now. Judge Able Foot is reviewing the appellate briefs. He starts reading your side's brief, to fully understand your position and whether the facts and law support it. He comes to a key point, which says:

The trial testimony of company Vice-President James Wilson plainly shows that he had actual knowledge that the reticulated switch would likely cause damage to a consumer. RP 3456.

Inquiring minds like the judge's need to know whether RP 3456 really supports the statement about James Wilson's actual knowledge. So he decides to read it himself.

To do so, he must first track down a copy of the report of the proceedings, locate the correct volume, and, finally, find the correct page. Conducting a comprehensive review of each citation will take many hours. He knows there has to be a better way.

Hyperlinked Briefs on CD-ROM
A hyperlinked CD-ROM brief is an exact electronic duplicate of a paper brief transferred to CD-ROM, with each citation to a case, transcript, clerk's paper, or exhibit hyperlinked to the source material. With one or two CD-ROMs, you can replace many boxes of notebooks.

If you've ever viewed information on the Internet and clicked on a colored or underlined word or phrase, you have used a hyperlink. A hyperlink is a word or series of words upon which you can click your mouse and be transferred to another page or document. In a CD-ROM brief, this means you click on a case name, and a hyperlink transfers you to the cited page of the full text of that case.

Benefits to the Court, Client, and Attorneys
A hyperlinked CD-ROM brief benefits courts, your client, and you. Judges and their clerks can access the cited record and cases much more easily. The Washington State Supreme Court has said that the justices would like to see more hyperlinked CD-ROM briefs. According to the Court in a recent case:

The parties also submitted their briefs in CD ROM form with hyperlinks to the record and the cases cited. We express sincere appreciation to the parties for doing this, as it greatly enhanced our ability to handle this case. The savings to the Court in time motion efforts alone enabled us to retrieve and examine relevant parts of the record with ease, and made the record far more accessible than it would have otherwise been. The materials in this case occupy about 50 banker's boxes.

We note that there is no reason why parties in more routine appeals to this Court should not seriously consider submitting the record and briefs to us in a similar format. Alcoa v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, fn. 1, 998 P.2d 856 (2000).

A CD-ROM brief, which fits in a coat pocket, gives judges or clerks working away from the office access to the briefs and the entire record. Judges and clerks can simultaneously access the record, instead of competing for a single paper copy. Clients benefit because they can more effectively read and understand the briefs. The CD-ROM brief makes access to the source material much simpler. Attorneys also benefit from CD-ROM briefs during preparation for oral argument, since the hyperlinks in CD-ROM briefs allow much quicker access to the cases and record.

Make Your Appeal Stand Out
A hyperlinked CD-ROM brief may make your appeal stand out from the crowd. If you are seeking discretionary review of a lower appellate court decision, this may be important.

Dan Grausz, general counsel for Holland America Line, was seeking to have the Washington State Supreme Court grant discretionary review of an adverse Court of Appeals decision. The case involved a class action with a voluminous record, and was very important to the company.

We knew that the Washington Supreme Court denies most motions for discretionary review, so we wanted something to make our case stand out from the crowd. We also wanted to make it easier for the judges to check on some of the statements made by the other side, which we did not think the record supported.

The Supreme Court granted our motion for discretionary review, and reversed the Court of Appeals decision. It was a complete victory, and both I and our appellate counsel, Steve Rummage of Davis Wright Tremaine, believe that the CD-ROM brief helped get our appeal noticed by the Court.

The Requirements of the New Rule
Rule of Appellate Procedure (RAP) 10.9 allows and encourages CD-ROM briefs filed as companions to printed briefs for state court appeals, which the rule calls a "corresponding brief." The requirements of the rule are:

14 days' notice must be given to the other parties before filing. RAP 10.9(b).
The CD-ROM must contain all briefs filed by all parties, and if one brief is hyperlinked, all must be hyperlinked. RAP 10.9(b)(1).
Formats allowed include Adobe Acrobat, Microsoft Word and WordPerfect, which all have free viewer programs. RAP 10.9(b)(2).
The CD-ROM must be accompanied by instructions for viewing and a verification of no viruses. RAP 10.9(b)(3).
The CD-ROM brief may be filed jointly (RAP 10.9(c)), but no party is required to prepare one. RAP 10.9(d). However, a party that decides not to join in the preparation of a CD-ROM brief must still cooperate by providing an electronic copy of its brief, if available.
The deadline for filing is 60 days after the final reply brief. RAP 10.9(e).
The costs of preparation are not recoverable as costs or attorneys' fees. RAP 10.9(f).

The Nuts and Bolts of Preparing a CD-ROM Brief
A hyperlinked CD-ROM brief can be either prepared in-house by a law firm, or contracted out to a firm that specializes in this service.

First, all the paper documents are converted to electronic form by scanning, and then transferred to the CD-ROM. Next, the citations in the briefs are hyperlinked to the correct page of the appropriate document. Finally, enhancements such as electronic highlighting and underlining can be added.

Except in unusual cases, the briefs of all parties, along with the entire transcript, the cases, the exhibits, and clerk's papers, will fit on a single CD-ROM. The entire process can be completed in about two weeks.

Appeals in Which CD-ROM Briefs Have Been Filed
Although CD-ROM briefs are relatively new, they are being used increasingly in courts throughout the United States. Some recent appeals in which hyperlinked CD-ROM briefs have been filed include: Alcoa v. Aetna Cas. & Sur. Co., 140 Wn.2d 517 (2000); Pickett v. Holland America Line Westours, Inc., 145 Wn.2d 178 (2001); State of California v. Lockheed Martin (California Court of Appeals, Third Appellate District); and Microsoft Corporation v. United States of America, 2001 U.S. App. Lexis 18715 (D.C. Cir. 2001).

Cost
The cost varies, depending on the length of a brief, the number of pages requiring scanning, and the number of hyperlinks. For a case with three briefs (opening, response, and reply), the total cost, using an outside service, may range from $5,000 to $15,000, or about $1,500 to $5,000 per hyperlinked brief. In addition, the appellate counsel will spend some additional time to coordinate the process.

Possibilities for the Future
So far, most hyperlinked CD-ROM briefs have been filed for appeals. The same benefits would also be available at the trial level, and may be particularly appreciated by harried trial judges. Further, the move toward electronic filing may make it possible to file a hyperlinked brief without a CD-ROM.

Many trial courts are moving toward electronic filing. The bankruptcy court for the Western District of Washington has already implemented electronic case filing, and the Eastern District will implement that system soon. The U.S. District Court for the Western District of Washington has published a proposed rule for electronic filing; King County Superior Court plans to implement a pilot project this year. Since you may be filing your briefs electronically anyway, why not file them with hyperlinks and make them much more usable? For electronically filed briefs, you could dispense with the CD-ROM and include the referenced material with the electronic filing.

Conclusion
The form of paper brief filed in most cases today would be familiar to attorneys practicing in 1900. Technology now readily available allows you to make a better appellate brief. A hyperlinked CD-ROM brief makes a brief more usable to courts and clients, and can make the important appeal stand out from the crowd. As courts become more familiar with the considerable advantages of this form of brief, hyperlinked CD-ROM briefs may define the standard for a well-prepared appeal.

Richard Lambe is a Washington attorney and owner of CDBrief, LLC, a Bellevue company that puts hyperlinked appellate briefs on CD-ROM for other attorneys. He may be reached at www.cdbrief.com.

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