Judge Griffen: "I write separately to address the glaring briefing deficiencies in this appeal and to again call for electronic filing of the record and briefs in our state. Appellant’s brief consists of four volumes, including a 277-page abstract and a 684-page addendum. ...
The record and the briefs in this case illustrate the need to modernize appellate
practice in Arkansas in light of the advantages presented by information technology. The
appellate record in this case was ten volumes, totaling 1959 pages. Appellant submitted a
980-page brief. Appellee’s brief, which included an unnecessary supplemental addendum,
numbered 174 pages. Appellant filed an eighteen-page reply brief. If each party made
twenty copies of the briefs (seventeen for filing with the clerk, one for opposing counsel, one
for the circuit court, and one for that party), then the briefs and record on appeal consisted
of 25,399 pieces of paper. According to an environmental company based in San Francisco,
California, one tree makes 16.67 reams (one ream = 500 sheets) of paper. Conservatree,
How much paper can be made from a tree? (last assessed Jan. 18, 2007). Based on these calculations, the paper filed by the parties on this appeal alone has consumed almost three trees.
Of course, all the voluminous paper briefs and record must be stored someplace once they are delivered to the Justice Building in Little Rock, so some method for physically storing and retrieving them must be selected, implemented, and financed. The cost of storing and retrieving paper records and briefs must be paid from state revenue.
The costs associated with our paper method of appellate practice does not end when
the record and briefs are assembled. There is the additional cost associated with transporting
paper to Little Rock for filing. In the instant case, the office of counsel for appellant is in
West Memphis. Appellee’s counsel’s office is in Jonesboro. Those offices are each
approximately 120 miles from Little Rock. Our current method of appellate practice required
that appellant’s counsel, or someone on his behalf, travel 120 miles to pick up the
voluminous record, drive 120 miles back to West Memphis to prepare the briefs, drive 120
miles to file the briefs and return the record, then drive 120 miles back home. At that point,
appellee’s counsel, or someone on his behalf, was forced to repeat this process. The
combined approximate distance driven by or on behalf of both attorneys to process the appeal
totals 960 miles. The vehicles used for that travel may have easily consumed at least $100
worth of gasoline.
The exercise that our current system of appellate practice imposed on the parties in
this appeal is repeated for every appeal taken in Arkansas. Thus, our court rules compel
people to run up and down the highways, when gasoline prices are a constant concern for
everyone, simply to file papers associated with appeals. We are doing this in the age of the
Internet, E-Bay, electronic filing of tax returns, and electronic banking. We are requiring
litigants to pack paper across Arkansas highways even as state and federal courts across the
nation are increasingly using the Internet by electronic filing (called “e-filing”).
E-filing will undoubtedly reduce costs to parties. E-filing eliminates the costs
associated with hand delivery, messenger services, printing, photocopying, mailing, and the
fuel costs associated with shipping or driving paper records and briefs from throughout
Arkansas to Little Rock.
E-filing also will provide savings to our courts. Judges and their staffs will be able
to retrieve electronic documents quickly and easily. Under our current paper system, the
paper record is accessible only to one user at a time and in one location. Thus, anytime a
lawyer, law clerk, member of the clerk’s staff, or judge desires to examine the record, he or
she must physically locate it, retrieve it, search it, and return it, all to the exclusion of any
other potential user of the record. If Arkansas adopted an e-filing system, the record could
be lodged electronically on a secure server that could be password protected so that users
could access it instantly, simultaneously, and economically. Thus, Arkansas lawyers and the
appellate courts would reduce paper storage costs.
I am merely advocating that we undertake reasonable steps consistent with what has
already been published in legal periodicals available locally. The William H. Bowen School
of Law at the University of Arkansas at Little Rock publishes The Journal of Appellate
Practice and Process twice a year. The Fall 2005 issue includes an article by Roger Hanson
of Williamsburg, Virginia that discusses the growing use of e-filing by American state
appellate courts.
Arkansas is already far behind other states concerning e-filing. Since 1998, Division
Two of the Arizona Court of Appeals has been involved in a clear move toward e-filing as
lawyers from the Pima County Public Defender’s office and the Tucson office of the Arizona
Attorney General were permitted to electronically file motions and briefs that were
maintained on a server. In 2001, trial court records from Pima County Superior Court were
electronically transmitted. In 2004, Division Two started accepting transcripts from court
reporters electronically.
The North Carolina Supreme Court and Court of Appeals currently use e-filing. All
records and briefs filed since 1999 are available on the Internet at no cost. About twenty-five
percent of all briefs are filed electronically, and the figures are growing. Fourteen states and
the District of Columbia use some type of e-filing. Arkansas should be among them. The
Summer 2000 issue of The Journal of Appellate Practice and Process includes articles that
review e-filing in the United States and in Alberta, Canada. I recommend taking a few
minutes to read the article by Deborah Leonard Parker titled Electronic Filing in North
Carolina: Using the Internet instead of the Interstate.
Appeals such as we have before us provide clear evidence why Arkansas appellate
courts should abandon our archaic appellate practices. As Judge George Nicholson of the
California Court of Appeals once observed:
The modern appellate courthouse is haunted by anachronism. At one moment, a judge
engages in electronic legal research, links with a computer in another state as easily
as to one in the next office, then to a computer perhaps even in another country in
search of just the right legal precedent. With just a few key strokes or mouse clicks,
vast databases of stored knowledge and wisdom can be searched while the judge
composes a legal opinion. The judge then slides the chair over to the other side of the
desk where lies the record on appeal, a collection of bound pages of trial court
transcripts and filings. The only way to search through the record for specific trial
testimony, for example, is to manually locate the testimony of the appropriate witness
and then read page by page until the desired testimony is found. It is as if, by sliding
the chair, the judge has gone back in time to a different era. The appellate judge has
one foot in the nineteenth century and the other in the twenty-first.
George Nicholson, A Vision of the Future of Appellate Practice and Process, 2 The Journal
of Appellate Practice and Process, 231-32 (Summer 2000) (footnotes and citations omitted).
Rather than transporting or shipping a multi-volume record to Little Rock, a court
reporter could simply prepare an electronic copy of the record and lodge it on a secure server
under the control of the supreme court clerk. The parties could then access that electronic
record to file electronic briefs, and could do so conveniently and safely from the offices of
their legal counsel without wasting time, gasoline, and money as required by our current
paper process. For those attorneys and judges who somehow remain wedded to the notion
that they must have paper documents at hand to function, their recourse would simply be to
click on the print icon on their computer word-processing screens. Whatever the initial and
ongoing costs for an e-filing system may be, one can safely predict that our State and
litigants will experience substantial savings.
Since 2001, I have been advocating that Arkansas modernize appellate practice by
implementing an electronic system for filing and briefing appeals. I do not understand why
it makes sense for our appellate process, in which lawyers and judges no longer rely upon
carbon paper, manual typewriters, and liquid paper for preparing briefs and opinions, to
operate as if the Internet does not exist and word processing was science fiction. Until some
type of electronic filing system is instituted, our appellate courts will continue to lag behind
the rest of the country and be a living anachronism. Meanwhile, the cost that Arkansans pay
to pursue paper appeals will be quite unnecessary. No matter how much time or money one
may have, wisdom always counsels employing technology to save time and money when
doing so will achieve the same result as employing more costly and time-consuming
measures. It remains to be seen whether we will be wise or foolish in this regard.
