Appellate Court E-Filing on the Horizon

by David R. Schanker

Electronic filing CONTINUES TO TAKE HOLD in Wisconsin’s state and federal courts.  In January 2008, the U.S. District Court for the Western District of Wisconsin became the last federal district court in the nation to implement electronic filing. In April, the Wisconsin Supreme Court approved the adoption of a new rule, effective July 1, 2008, governing the use of e-filing in Wisconsin’s circuit courts. In June, the Wisconsin Court of Appeals filed petition 08-15 with the supreme court requesting adoption of a new rule requiring attorneys to file an electronic copy of all appellate briefs and no-merit reports. And on July 14, 2008, the Clerk of the Supreme Court filed petition 08-18 asking the supreme court for a companion rule requiring an electronic copy of petitions for review and responses. (Editor’s Note: Orders for petitions 08-15 and 08-18 appear in the Supreme Court Orders section of this issue of Wisconsin Lawyer.)

This explosion of activity is the culmination of many years’ preparation. In Wisconsin’s state courts, the foundation was laid by the Consolidated Court Automation Programs (CCAP), which has created a highly functional, easy-to-use, Web-based e-filing system. The system, which has been successfully tested for two years in a pilot project in Washington and Kenosha counties, includes interfaces for filers, court employees, and judges. Filers register with the system and receive a unique user identification and personal identification number (PIN) for logging in. Once registered, attorneys and pro se litigants can initiate cases electronically, pay filing fees, file documents, and serve documents on other parties. The system automatically updates the case record and associates filed documents with the circuit court case management system. (For more information about the CCAP Web-based system, please see “Paperless Courts: E-Filing in Wisconsin Circuit Courts” in the July 2008 Wisconsin Lawyer.)

E-filing in Wisconsin appellate courts. The same system will be used for appellate e-filing, although its functionality will be limited to briefs, no-merit reports, petitions for review, and appendices. Appellate filing fees will not be accepted electronically, and the appellate courts will not issue orders electronically. The proposed appellate e-filing rules contemplate a small step toward appellate e-filing – not full-blown e-filing – and the new rules, if adopted, will not eliminate the requirement that paper copies be filed. The required electronic copy will be in addition to the paper copies currently required under the appellate rules.

Under the proposed rules, the filing of an electronic brief, no-merit report, or petition for review will be mandatory for lawyers and optional for self-represented parties. E-filed documents will be available online to judges, court staff, and the lawyers or pro se litigants in the case but will not be electronically accessible by the public. All filed materials (unless confidential or sealed) will be available to the public at the clerk’s office in the usual manner.

The proposed rules set forth several requirements for electronic briefs, petitions for review, and no-merit reports. First, the electronic versions must be in text-searchable portable document format (PDF). A text-searchable PDF document is converted directly from Word™ or WordPerfect™ instead of being scanned. Some versions of Word and WordPerfect include a conversion feature. Otherwise, Adobe Acrobat™ software can be used, as can other free or inexpensive conversion options. Second, the brief must not include the appendix. Third, the electronic brief must be filed on or before the date the paper copies are filed. Fourth, the brief will be required to contain a certification that the text of the brief’s electronic version is identical to that of the paper version.

Under the proposed rule, the filing of an electronic version of the appendix is permitted but not mandatory. The requirements for appendices will be slightly different from those for briefs. First, an electronic copy of an appendix must be a PDF image document, which means it is scanned into PDF rather than converted. Second, it cannot be part of the same electronic document as the brief (for the paper copies, filers must continue to bind the brief and appendix together unless the appendix is particularly large). Third, if the appendix is longer than 250 pages, the electronic version should be split into smaller documents. Fourth, the electronic appendix, like the brief, must be filed on or before the date the paper copies are filed. Fifth, filers must include a certification that the content of the electronic appendix is identical to the content of the paper appendix. The proposed rule provides sample certification language.

The benefits of this project are at least three-fold. First, access to electronic briefs will help appellate judges and court staff do their jobs more efficiently. Second, it’s a small step toward e-filing that will smooth the way toward full e-filing on the appellate level . Third, it presents filers with the option of filing briefs enhanced with internal and external links to cases or statutes cited in the brief.

Public hearing on Oct. 28, 2008. At the Oct. 28 public hearing, the court of appeals and the clerk’s office will ask the supreme court for an effective date of July 1, 2009, for the proposed rules, although it is expected that the system will be up and running before then. The petitioners hope that lawyers will begin using the system on a voluntary basis early in 2009.

The clerk’s office looks forward to working with the bar to accomplish this initial step toward appellate e-filing.