History of Hyperlinks & Electronic Briefs
History of Hyperlinks
Merriam Webster defines a hyperlink as “an electronic link providing direct access from one distinctively marked place in a hypertext or hypermedia document to another in the same or a different document.” The notion of a hyperlink was first suggested in the 1930s as a non-linear method of reviewing data but not realized until 1966 at the Stanford Research Institute – where most computing for the general public first began (i.e. mouse and interactive computing). After the creation of the World Wide Web, hyperlinks were first implemented in 1989 by Tim Berners-Lee at CERN. Interactive computing with the ability to browse information at hyperspeed is now commonplace and a regular part of virtually everyone’s daily diet, worldwide.
History of Ebriefs
Although the hyperlinked document has been around for some time, in the legal field the most significant use of an electronic based document is the “ebrief”: a digital or electronic version of a hard copy legal brief, typically a PDF file. The basic form of the electronic brief is that used in the Case Management/Electronic Case Filing (CM/ECF) which first occurred in the US District Court for the Northern District of Ohio in January 1996. As of 2003, over ten million cases in the federal court system have used CM/ECF and all federal district, bankruptcy and appellate courts now use CM/ECF. LexisNexis’ File & Serve service alone had e-filed over one billion pages as of April 2008.
History of Hyperlinked Ebriefs
The more interactive form of the electronic brief is the hyperlinked ebrief: a digital or electronic version of a hard copy brief that incorporates the use of hyperlinks within the ebrief to reference citations and other documents and media, typically a PDF file linking to multiple, attached PDFs of citations in the brief. The first hyperlinked ebrief was filed in the US Circuit Court of Appeals for the Federal Circuit in 1997 and the first hyperlinked ebrief was submitted to the US Supreme Court in February 1997 in Reno v. American Civil Liberties Union. As of August 2009, eight of the US Circuit Courts of Appeal expressly permit the filing of hyperlinked ebriefs; none of the remaining Courts of Appeal have rules which disallow hyperlinked ebriefs.
Trends in Electronic Briefs
A quick look around and you can see that the Courts are increasingly moving from simply requiring the ECF filing of un-linked PDFs, to recommending or requiring hyperlinking to exhibits and other documents in the record. There is a push by courts, clients and panels to obtain briefs electronically in lieu of hardcopy documents to reduce costs of archive and storage. So important, in fact, that the federal courts say they are developing software for the district and bankruptcy courts to permit appellate court filers to create hyperlinks in their documents to district and bankruptcy court records.
What You Should Know About Producing a Hyperlinked Ebrief
What do you need to know about filing your brief as a hyperlinked ebrief? Whether you engage a vendor to do the technical heavy lifting, or choose to produce the ebrief in-house, there are a few simple things to know, and things you will need to research.
First, find out if you can file a hyperlinked ebrief in your jurisdiction. While this is not a major concern, most federal and state courts permit the filing of linked ebriefs, check the local rules immediately. In our experience, we have never had a court reject or refuse to accept a linked ebrief (a ‘courtesy copy’ ebrief is a great additional resource to the hardcopy version), and certain courts do permit such filings but lay out specific criteria as to the form of, or procedure for, the electronic submission. For example, the 10th Circuit permits hyperlinked briefs, and only specifies that the brief must be a PDF file.1 The 3rd Circuit, however, while also permitting such filings, is far more proscriptive in terms of what material the hyperlinks may link to, and also requires the filing of a motion to request leave to link to and include audio and video files.2
Second, is the brief finished? If not, don’t start work on the ebrief yet – hyperlinking a draft brief is likely to result in pagination and formatting issues and you may lose all work done on the draft. Wait for the brief to be final, then use the native word processing document of that as-filed brief to create the ebrief. From this point all that’s required is that your Word or WordPerfect document is converted to a native Acrobat PDF file and handed off to either your vendor or your in-house team. Many courts allow for ebriefs to be filed several days subsequent to the brief’s filing deadline, so after your brief is ECF or hard-copy filed, you likely have a few days/weeks to complete the linking of the ebrief and all we know of accept this in way of CD or DVD (Future trends point to secure online access for download to other media. Again, check the current local rules.
Now that the brief has been filed and you’re ready to start work on the ebrief, what next? Hopefully, you already have all of the brief’s cited references – cases, exhibits, documents, audio or video files – already available in electronic form, preferably as PDFs (for the documents). If not, get them organized, and use a simple and straightforward file naming schema – like “DX1.pdf”, “Smith v Jones.pdf”, etc. Get these documents to your vendor or your internal folks.
If you intend to highlight, annotate or otherwise visually emphasize any of underlying documents – like yellow-highlighting a paragraph in a cited case – have the appropriate attorneys or legal assistants do that on the hard copies, or better yet, apply them electronically.
Lastly, it is important in the production process to be as clear and precise as possible. There are many graphical issues that can arise in producing an ebrief that will create unnecessary distractions (think web page that looks bad and takes away from the information in it). It is imperative that you communicate upfront with the people completing the process what you’d like to see in the final product from highlights, zoom levels, customized buttons to the naming conventions of the files. Preparing and mapping out the documents early on will make your life much less complicated and the time sensitive project will be completed on time.
1 General Order 95-01 (March 18, 2009), Section II(A): Briefs may contain, but are not required to contain, hyperlinks to cases and authorities. The brief itself must be filed in native pdf format. (http://www.ca10.uscourts.gov/downloads/generalorder-efile.pdf)
2 Local Rule 28.3(c): Hyperlinks to the electronic appendix may be added to the brief. If hyperlinks are used, the brief must also contain immediately preceding the hyperlink a reference to the paper appendix page. Hyperlinks to testimony must be to a transcript. A motion must be filed and granted seeking permission to hyperlink to an audio or video file before such links may be included in the brief or appendix. Hyperlinks may not be used to link to sealed or restricted documents.” (http://www.vid.uscourts.gov/Rules/3ca_appellate_rules.pdf)
References A Brief History of the Hyperlink; “The Web Time Forgot,” New York Times; Wikipedia hyperlink entry; Google’s timeline history of hyperlink results; First hyperlinked ebrief ever filed, CNET, 1997; “First cyberbrief” submitted to Supreme Court; History of e-filing in federal courts, (uscourts.gov); LexisNexis press release re filing one billion pages with File & Serve service