Love it or hate it, technology is part of the practice of law. Used well, technology can make the appellate lawyer’s job easier by streamlining the tedious parts of researching, writing and filing an appellate brief. A savvy appellate lawyer knows which tools will give the most bang for the buck. Here are a few tools — some new and some tried and true — designed to help you produce quality briefs with fewer headaches.
Reviewing the Trial Court Record
Attorneys in the habit of annotating paper transcripts with pens and highlighters should consider Transcript Pad (www.litsoftware.com/transcriptpad). Transcript Pad is an appthat lets you upload trial transcripts onto an iPad (only) and then annotate the transcript. The only hitch is that you need to import the original exported text file (.TXT) from the court reporter: It doesn’t work with PDF versions of transcripts.
Compiling the Reproduced Record
PC Magazine gave Adobe Acrobat Pro DC 4.5 stars and called it “the gold standard among high-end PDF apps.” See www.pcmag.com/review/333873/adobe-acrobat-pro-dc. Other reviewers have been less kind. (See the comments section of the same PCMag.com review.) Whatever one’s view of the ubiquitous software, Adobe Acrobat’s many features facilitate the creation of the reproduced record/appendix.
For example, multiple documents can easily be merged into one with new documents added in the beginning, middle or end. After the record is compiled, Acrobat lets you create page numbers in the required format, which in the Pennsylvania appellate courts is (R. ___ a.) See Pa.R.A.P. 2132(a). Once a template is created in Acrobat, the numbers will show up on the page in the correct format. If you want to use double-sided pages for the reproduced record, Acrobat permits alternate page numbering from the left side to the right side of the page.
The recently adopted Public Access Policy of the Unified Judicial System of Pennsylvania requires the protection of confidential information. The three Pennsylvania appellate courts have all entered orders requiring parties to file two versions of briefs — an original version and a redacted version that eliminates all confidential information.
Redacting documents in Acrobat is a multistep process and it’s not intuitive. If you forget to save or overly redact a document, the only fix is to start all over — a huge pain in the neck. It may not be perfect, but it is easier and more reliable than using a Sharpie marker.
Note that the preferred method for creating a reproduced record is to include converted PDFs of the contents instead of scanned PDFs. A converted PDF is fully text searchable and allows for the retention of bookmarks and hyperlinks. Scanned PDFs are more limited. See Attorney Guide to Hyperlinking in the Federal Courts (http://federalcourthyperlinking.org/attorney-guide-to-hyperlinking/).
Finally, be sure to use Acrobat’s tool to Remove Hidden Information to find and remove metadata from a PDF before filing via PacFile or PACER. For more information about redacting and removing metadata using Acrobat, see https://helpx.adobe.com/acrobat/using/removing-sensitive-content-pdfs.html.
Optimizing Legal Research
An appellate brief is only as good as the research that supports it. There are many legal research programs out there — Casemaker(free for PBA members),Fastcase, Lexis, Westlaw — and everyone has their favorite. Legal research is the lifeblood of my practice as an appellate lawyer. I need a robust search engine with many different databases. I have been using Lexis for Microsoft Office as a Word add-in for the past several years and it’s worked well for me. I particularly like the ability to run an opposing counsel’s brief through the program. The program also creates links to all of the cited cases, making it easy to read and Shepardize cited authority.
The big legal research companies are continually upgrading their technology to be competitive. LexisNexis, for example, recently bought Ravel (https://home.ravellaw.com/), a legal research tool that displays search results visually, along with a cluster map showing the relationships among cases and their relative importance to each other. In March, Lexis finished integrating Ravel’s visualization features into Lexis Advance. Ravel’s analytics tools, which feature court, judge and case analytics, were slated for Lexis integration in May.
A newcomer in the legal research universe, CARA A.I.by Casetext (https://casetext.com/) is an artificial intelligence program that purports to analyze a brief and do the legal research for you. As one who is skeptical of facially grandiose promises, I signed up for a CARA A.I. demo and trial subscription and put it to a test. The program is incredibly easy to use. It opens a window where you upload a document (either Word or PDF), add a few keywords and hit the search button.
I uploaded into CARA A.I. a draft appellate brief for the Superior Court, added a few key words (domicile, divorce, jurisdiction), designated Pennsylvania as the jurisdiction and hit enter. Within seconds, CARA A.I. created a list of cases addressing those issues, ranking them by the number of paragraphs that contained my key terms. Most of the cases were already in my brief, but it also found a few that had slipped through the cracks. I was so impressed with CARA A.I. that I bought the service to supplement my current research programs.
Finally, I recommend giving Casemaker serious consideration. Casemaker is free for PBA members, which can save thousands of dollars a year in software costs. Even for those who are wedded to one of the other providers, adding Casemaker to one’s legal research arsenal may help to narrow the scope of paid services to the databases used most often. Also, don’t assume that free means inferior. Casemaker has a robust and up-to-date search engine and extensive database. The PBA has compiled a handy summary of Casemaker, which is available in laminated form at PBA meetings and online at https://www.pabar.org/pdf/CMLibrary.pdf.
Writing Better Briefs
For many years, “brief-writing tools” meant one thing — pens and pencils. Today, however, most of us draft briefs on our computers. One tool, LegalBoard (https://legalboards.myshopify.com/), is designed to make that process easier. LegalBoard is a keyboard designed specifically for lawyers. It has dedicated keys for many common symbols, including §, ¶, and ©, and common words and abbreviations, including see, e.g., id., U.S., and F.2d. The LegalBoard connects to a desktop, replacing the standard keyboard. The LegalBoard inventors recently introduced another tool, the LegalPad. The LegalPad is a smaller keyboard that plugs into a USB port. It is handy for travel and is compatible with both PCs and Macs.
After drafting a brief, it’s time to edit. For many years, editing was limited to Spell Check, a barebones spelling checker. For Office 365 subscribers, Microsoft has replaced Word’s Spell Check with Editor, which checks both spelling and grammar and gives recommendations to improve “clarity and conciseness.”
There are several other programs with similar goals. In addition to checking “contextual spelling,” grammar and punctuation, Grammarly (www.grammarly.com) also checks sentence structure, style and vocabulary. It runs in the background and permits the drafter to fix writing errors on the fly. I use both Grammarly for Chrome, which helps create error-free emails, and Grammarly for Microsoft Office, a Word add-in.
There are also other, more sophisticated, programs that use advanced computer technology to improve briefs. BriefCatch (https://briefcatch.com/), for example, relies on algorithms. In addition to proofreading, it analyzes a brief’s formatting, capitalization, punctuation and citation style and will flag long sentences or string cites for editing. BriefCatch will also rate a brief for clarity, flow, sentence length and punchiness and assign a score to each category. Like Grammarly and others, BriefCatch is an add-in for Word that is accessed on the Word toolbar. BriefCatch is not yet available for Mac.
A few weeks ago, I took BriefCatch for a test drive by trying it out on an allocatur petition I was preparing to file in the Pennsylvania Supreme Court. After running the program, I made some, but not all, of the recommended changes. The changes improved the brief in each of the five BriefCatch categories: Reading Happiness, Sentence Length, Flow, Punchiness and Plain English. The latter improved the most, an indication that I, like many lawyers, need to cut back on the legalese. The bottom line: Although each change was minor, the impact was noticeable. BriefCatch helped make my brief more reader-friendly.
WordRake (https://www.wordrake.com/),like BriefCatch, is designed to improve readability. While BriefCatch puts suggested changes in a sidebar, WordRake marks up the draft. For a side-by-side comparison of BriefCatch and WordRake, see Robert Ambrogi’s article “Putting Justice Gorsuch to the Test of Three Legal Editing Programs,” www.lawsitesblog.com/2018/05/putting-justice-gorsuch-to-the-test-of-three-legal-editing-programs.html.
PerfectIt is a proofreading program that focuses on consistency. The version designed for lawyers isan advanced Word add-in that includes styles specifically for lawyers, including legal terms from Black’s Law Dictionary, The Bluebook and The Redbook. PerfectIt will check for consistency in capitalization use, incorrect word choice, legal style, legal-specific typos (e.g., “statue” instead of “statute”) and errors in paired punctuation, such as quotation marks. Note that PerfectIt does not check spelling or grammar — you’ll need one of the other editing programs for that.
The Pennsylvania appellate rules are precise about the formatting of an appellate brief. Pa. R.A.P. 2111 sets forth the contents and order of various parts of the brief of the appellant. See also Pa. R.A.P. 2112 (brief of the appellee) and Pa. R.A.P. 2113 (reply brief). Other required elements are contained elsewhere, such as Rule 2117, which lists the subparts of the statement of the case. Appellate briefs must also include tables of contents and tables of authorities. See Pa. R.A.P. 2174.
Given the complexity of an appellate brief, formatting one can be a major headache. Microsoft Word has several tools that are useful, but there is a learning curve for the more advanced formatting tasks. There are, however, several articles and guides on the web that you can access for help with formatting. One such guide, “Formatting an Appellate Brief in Microsoft Word,” (https://lawyerist.com/technology/microsoft-office/word/appellate-brief-formatting/) provides step-by-step instructions on creating section breaks, using Styles to format headings, inserting a table of contents, marking citations and creating templates for other briefs.
Formatting programs are not limited to Word. I recently discovered Best Authority, (https://www.levitjames.com/best-authority/overview), a Word add-in that simplifies the process of creating a table of authorities (TOA). Best Authority automatically finds and marks all the legal citations in a brief and generates a TOA in seconds. Not only is it fast, but it is very accurate. I tested the program recently with an appellate brief I was preparing to file and the TOA came up clean and accurate. Better still, the program is designed so you don’t have to wait until the last minute to generate a TOA. Best Authority keeps earlier changes and customizations and revises the TOA to include new cites and page numbers.
Formatting Briefs for Screens
Many judges and law clerks now read briefs on computer screens and tablets. Studies show that people read information on screens differently than on paper. See Mary Beth Beazley, “Writing (and Reading) Appellate Briefs in the Digital Age,” 15:1 J. App. Prac. & Process 47, 48-58 (2014).
In 2017, the ABA Council of Appellate Lawyers issued a whitepaper titled “The Lead from E-Filing to E-Briefing: Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs” (https://www.courts.ca.gov/documents/2DCA-the-leap-from-efiling-to-ebriefing.pdf). Chapter 4, Readability, provides formatting ideas that lawyers can use to improve the readability of their briefs.
An iPad or other tablet can be an effective tool for oral argument. A few months ago, I was scheduled for oral argument in the Superior Court in two unrelated cases on the same afternoon. To avoid lugging an enormous briefcase into the courtroom, I loaded the argument outlines, briefs and reproduced records onto an iPad and saved the argument outline in Notability, an iPad app. I chose Notability because it has a scroll feature that makes it easy to segue from one page to the next and back. I was able to use the accompanying Apple Pencil to make (and easily erase) handwritten notes on my outline during opposing counsel’s argument.
Current technology has made it easier to produce high quality, professional looking appellate briefs efficiently. At its core, however, an appellate brief is only as good as the ideas and analysis on which it is based. Basic good lawyering remains the best way to win on appeal.
Reprinted with permission from the July/August 2019 issue of The Pennsylvania Lawyer.