Don Willenburg, Gordon & Rees partner (Jason Doiy / The Recorder)
SAN FRANCISCO — The First District Court of Appeal has been encouraging attorneys to file electronic briefs along with paper versions for some time. But starting March 17, e-filing will become mandatory for virtually all civil cases. Attorneys will be required to file in PDF or compatible format and submit through ImageSoft’s TrueFiling system. E-filing will be required for criminal cases as of April 14.
Few appellate lawyers know the system better than Gordon & Rees partner Don Willenburg, the only practicing lawyer on the Judicial Council’s Court Technology Advisory Committee. Led by First District Justice Terence Bruiniers, the committee has been hammering out the project in earnest over the last year, and Willenburg and a few colleagues in the appellate bar have spent the last several weeks giving it a test-drive.
Q: This will be the first California appellate court to make virtually all filings mandatory?
A: Yes. I think it particularly makes sense not so much with the briefs, but two other categories of materials. One is the record, which otherwise can be volumes and volumes and boxes and boxes of stuff. And there’s really no point in burdening the court any more than necessary. The other is relatively routine administrative matters, stipulations to extension of time, that kind of thing, where it really doesn’t make sense to have paper at all.
Q: So this is a two-step process. You’ll have to register first.
A: That’s right.
Q: How difficult is that to do?
A: I gave it a try on a test program last week and it wasn’t hard. There were multiple steps, as there are in many computer registration schemes, but it was easy enough that even I could do it, as well as my able assistant.
Q: Well, if you’re on the technology committee, I would assume you’re pretty technologically savvy, right?
A: Well …
Q: Or are you the “reasonable person” of the committee?
A: I might be more representative of the bar as a whole. I might be more savvy than some, but I’m certainly less savvy than others. Actually, I think that’s a useful thing on the committee, because that allows me to remember that not everyone knows how to do this or is familiar with that.
Q: If I’m used to filing in federal court on PACER, will this be similar?
A: I don’t think that we, on the first go-round, will have the ability to search a court docket and pull documents out. That’s coming, but the first priority was to get people e-filing and reduce the administrative burden on the courts that really don’t have nearly as many people as they used to or as many as they ought to. It’s sort of off-loading what used to be duties of the clerk to the people who are filing.
Q: I take it this will mean that I can file right up to midnight on the day of filing?
A: Let me check this for sure. … EXCELLENT! I guess it’s excellent, because everybody would like to have the later time to file. On the other hand, what does that mean for most lawyers? It means, well, you might get to work closer to midnight.
Q: Are there fees for e-filing? Is it going to cost a little bit more?
Q: Will they be recoverable as costs on appeal?
A: Yes. I can’t imagine that they’ll be much.
Q: Will I be able to serve opponents by email now?
A: You will be able to serve them by filing in this way.
Q: Will this allow for hyperlinking in briefs? Will I be able to make my case citations hyperlinked to the cases?
A: I think that maybe it can be done, but there was some question about whether that should also become mandatory. And I’ll say that representing the bar, I was opposed to that idea just because it takes so much more time, and lawyers would end up becoming practically half-lawyer and half-website designer. Hyperlinking to cited cases is convenient, but it doesn’t seem really that important and significant. What I do see coming down the pike sometime is that in cases that have a large record, to hyperlink to the spot in the record. Some lawyers have been doing that in big cases already.
Q: You were the only attorney on a committee with numerous judges, court administrators and technology experts. Did that make it at all intimidating for you?
A: I will confess it, in some ways, it was a little intimidating. It was originally chaired, and I got brought onto the committee, by Supreme Court Justice Ming Chin. And when you get a call from the Supreme Court saying, “Would you like to serve on this committee?” Yeah, sure!
I had met Justice Chin at another MCLE event and invited him to come do a presentation for the appellate section of the Bar Association of San Francisco. And he came and he talked about technology, in fact. And I said if there’s anything I can do, let me know. And then the next thing you know, he actually called.
Q: What’s the most important thing for appellate practitioners to do at this point?
A: Register on March 10. The plan is that we’re going to be up and running [March 17].
Q: So people need to get signed up?
A: You will be able to register more or less at the time you’re filing. But you might as well register ahead of time and be sure it’s up and going.
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