D. Todd Smith

For many Texas lawyers, filing trial court pleadings electronically has become almost second nature. The federal district and bankruptcy courts' Case Management/Electronic Case Files system is well established, and through TexasOnline, e-filing is an increasingly available option in state trial courts.

Yet, the 5th U.S. Circuit Court of Appeals and Texas appellate courts have lagged behind the e-filing curve. Though each system implemented a means of making orders and opinions available online and through e-mail notification, parties have not been able to officially file appellate motions or briefs electronically. Thankfully, change is here in the 5th Circuit and soon will be coming to the state appellate courts.

For the past three months, the 5th Circuit has offered voluntary e-filing through the appellate version of the federal judiciary's CM/ECF system. What began as an optional test run became mandatory on March 15, according to the 5th Circuit's website. Unless excused for good cause, counsel or an approved designee must register under new 5th Circuit Rule 25.2.3 and comply with the electronic filing standards posted at the CM/ECF information page on the 5th Circuit's website. See "Paper Cut." Texas Lawyer, March 8, 2010.

Registering attorneys must be admitted to practice in the 5th Circuit and must file an appearance form in each case. In public announcements about the new rules, the clerk's office strongly recommends that all members of the 5th Circuit Bar register, even if they do not currently have a case pending before the court. Registrants must complete two training modules online before being cleared to e-file.

Upon completing these initial steps, the 5th Circuit system should be seamless for those with experience e-filing in lower federal courts. As lawyers might expect, the biggest change from past practice is how to deliver documents to the court and other counsel.

According to explanatory materials available on its website, the 5th Circuit does not want paper copies unless it specifically requests them. Under new Circuit Rule 25.2.3, registering constitutes consent to electronic service of all documents, so after some initial lag time, serving a hard copy on opposing counsel should not be required. Under the new rules, briefs and motions uploaded in PDF format and processed through the ECF system will take the place of printed and bound versions.

Greater Efficiency

Without an established and unified e-filing model to build on, change has come more slowly in the state appellate court system. For years, the Texas Supreme Court has posted briefs and webcast oral arguments on its website, and some intermediate courts have undertaken similar measures. Recently, the Supreme Court started requiring parties to e-mail the clerk with searchable PDF copies of just about every kind of document other than a motion for extension of time. But sending e-copies is not yet sufficient to constitute filing or service; the court still requires the regular paper versions.

In 2007, the Texas Legislature appropriated $2.3 million for the Office of Court Administration to develop the Texas Appeals Management and E-Filing System. According to the OCA's website, the result of that effort is scheduled to launch on a pilot basis later this spring. With the coming implementation of TAMES, full-blown e-filing is finally on the horizon in Texas state appellate courts.

The OCA website suggests TAMES will work much like Texas trial court e-filing does now, with litigants submitting documents in PDF format to a third-party site that will transmit them to the appellate court and other registered users for filing and service. Presumably, state court appellate e-filing will follow the rest of the TexasOnline model -- which seems to have worked well in trial courts -- and will be funded through charges allocated to the filer on a per-transaction basis.

Aside from who will pay for the system and how, a number of other questions must be resolved before or shortly after TAMES goes live. For example: Will the system be mandatory, like the 5th Circuit's? Will it allow users to dispense with filing paper versions of motions and briefs? Will electronic service be required, or will counsel be allowed to opt out and thereby force others to continue serving hard copies? Will trial court clerks and court reporters be required to create and transmit appellate records in electronic form? Will appellate records be available for viewing online, and if so, by whom? How will the new system address sensitive information often found in appellate records, such as minors' names and parties' Social Security numbers? The answers to these and other questions will be debated thoroughly in the coming months.

Litigators, clients, and appellate judges should embrace e-filing for the greater efficiency and cost-effectiveness it will bring to the appellate process. Like it or not, paper is on the way out, and litigants should no longer have to pay what can be exorbitant amounts for obtaining appellate records, copying records and briefs, and shipping documents. Reading briefs on a laptop or e-reader will take some getting used to, as was the case before drafting at the computer keyboard became commonplace. As in other areas of litigation, technological advances require those involved in the appellate process to adapt.

D. Todd Smith is board certified in civil appellate law by the Texas Board of Legal Specialization. He is based in Austin, Texas, where he heads the Smith Law Group. He is the creator and publisher of the Texas Appellate Law Blog.