Massachusetts Appeals Court: Paperless Practices

Learning Objectives How Judges and Staff Read and Review e-Filed Documents How e-Filers Can Optimize Their Documents

The Hardware & Software (1) Typical Appeals Court PC Workstation: PDF software: Adobe Reader XI

The Hardware & Software (2) Justices & Court Clerk: iPad Pro 12.9” Staff Attorneys & Assistant Clerks: iPad 9.7” PDF Application: Goodreader (v.4)

Where do the PDFs go? After e-filing is complete, they first go into the appellate courts’ document management system (DMS) (Content Server by OpenText) Clerk’s office maintains archival version which will not be altered/annotated Electronic copies of case PDFs available to judges and staff attorneys via desktop & iPad These copies get marked up/annotated Insert content from 1 page checklist for efiled brief/appendix

PDFs on desktop Case PDFs downloaded from DMS for work on local machine Adobe Reader can be used to annotate, e.g.:

PDFs on iPad (1) Case PDFs are downloaded from DMS to user’s master folder in network drive Through secure wifi, folder in Goodreader (PDF app) on iPad connects to master folder A sync process delivers all new content to the iPad folder, and also backs up to the master folder any PDF annotations made on the iPad

PDFs on iPad (2): Annotating with Goodreader

PDFs on iPad (3) Most of our judges prepare for argument by reading the case materials exclusively on their iPad Pros (12.9”) Judge: "I would make sure the attorneys know how the judges can take notes on the iPad. E.g., we can highlight or underline and send an email to ourselves with our annotations (which I do); we can dictate notes and questions for argument and email those notes as well; we can and do jump over to the Mass. Cases website to check how a party is citing a case."

PDFs on iPad (4) Non-linear reading Judge: "I think the iPad makes it much easier to experiment with the order in which we read things -- it is easy to jump from brief to brief or appendix. Sometimes I read the order on appeal (if there is a written decision), blue brief, red brief, reply (if any), and flip to the appendix. But other times I will reach each side's facts, and then each side's argument I, then argument II."

Standards you need to nail (1) Ensure text is searchable (convert from word processor where possible; or scan with OCR then test it) Do not file "locked" PDFs or in PDF/A format -- can’t be annotated Check visual quality of all docs and exhibits, esp. plans, maps, photos, old docs, or small print (e.g., deeds).

Standards you need to nail (2) Proper pagination (page # of PDF file = page # of document) Include findings/memo of decision in appellant's brief addendum as well as in appendix. Mass.R.A.P. 16(a)(6) Criminal cases: include complaint(s) or indictment(s) in appendix. Mass.R.A.P. 18(a)

Standards you need to nail (3) Judge: "Beg them to make sure that all documents are in e-compliant form. It is not unusual to see entire briefs which can't be searched or annotated. And, with some frequency, we find that the brief is OK, but an addendum or some things (but not others) in the [appendix] are not. They really need to get this right."

Helpful things to do (1) Enhance the navigability of your PDF docs! TABLE OF CONTENTS: (1) identify docs and exhibits fully in each table entry (2) include sub-documents in TOC also, e.g., attachments to a motion; the administrative record (3) HYPERLINKS from TOC to each doc and subdoc (4) add a return link to the TOC from every page (using a header or footer)

Helpful things to do (2) Judge: "In an administrative law appeal, do not put in the administrative record with one entry [in the table of contents] from pages 1 to 400 (I kid you not, this happens all the time . . . ). Put in subheadings that correspond to the TOC for the record. Do this any time there is a multi-document filing. Another place where this crops up is a [summary judgment] record. [Attorneys] put in the statement of undisputed facts with all the affidavits and exhibits attached and give us [nothing in the TOC] for where the aff[idavit]s or exhibits are. . . . And if they have included a bunch of unsearchable do[cuments], the whole thing is impossible. The best would be if the TOC was hot linked to the pages . . . ."

Helpful things to do (3) Since separate PDFs must all begin at page 1, make sure all record cites include appendix volume and page number Make sure cover of appendix volume shows volume number Good if Bates numbering can show both volume and page on every page Helpful when appendix occupies as few volumes as possible (but keep 25 MB PDF size limit in mind)

Helpful things to do (4) Headings in briefs -- keep concise, but ensure presence of key words likely to be searched for Judge: "I would encourage the parties to write using effective 'headlines.' In some ideal world, I would be able to highlight these headlines and my notes would be done. They may be fact or argument headings but sometimes they are key facts."

Helpful things to do (5) Word indexes at end of transcripts are still useful, include where possible Include parties' legal memoranda in appendix where relevant (even if only to possible issue of waiver at trial level) "Mini" (i.e., condensed) transcripts are not helpful. Avoid. PDF file naming: do not include special characters in your file names (e.g., []@#*&%+-!)

Helpful things to do (6) Plain old good brief writing! Judge: "To be honest, I don't think I read briefs on my iPad any differently than I would a paper brief. Clear organization and persuasive writing -- addressing weaknesses and any contrary evidence or case law directly and without obfuscation -- are always paramount." Minimize boilerplate. Judge: "I don't need 5 pages on Latimore or on the standard of review of board or agency decisions." Staff attorney: "If anything, poor habits in brief writing – wordiness, disorganization, avoidance of inconvenient facts or law, etc. -- seem magnified when viewed on a screen. Clear thinking and concise, direct writing are now more important than ever." Judge: "It is great strategy to make concessions you should make (and, conversely, it undermines an attorney's credibility to make an argument that is not squared with the facts)."

Questions