The Pennsylvania Lawyer 48 July/August 2019

Love it or hate it,

technology is part

of the practice of law.

Used well, technology

can make the appellate

lawyer’s job easier

by streamlining the

tedious parts of researching, writing and

filing an appellate brief. A savvy appellate

lawyer knows which tools will give the

most bang for the buck. Here are a few

tools — some new and some tried and

true — designed to help you produce

quality briefs with fewer headaches.

Reviewing the Trial Court RecordAttorneys in the habit of annotating papertranscripts with pens and highlighters shouldconsider Transcript Pad (www.litsoftware.com/transcriptpad). Transcript Pad is an appthat lets you upload trial transcripts onto aniPad (only) and then annotate the transcript.The only hitch is that you need to import the original exported text file (.TXT) fromthe court reporter: It doesn’t work with PDFversions of transcripts.

Compiling the Reproduced RecordPC Magazine gave Adobe Acrobat Pro DC 4.5 stars and called it “the gold standard among high-end PDF apps.” See

Using the Latest Technology to Tame the Appellate Record and Produce Better BriefsBy Virginia Hinrichs McMichael

PAL-2019 07-08 P34-48.qxp_Layout 1 6/19/19 7:42 AM Page 48

49The Pennsylvania Lawyer July/August 2019

www. pcmag.com/review/333873/adobe-acrobat-pro-dc. Other reviewers have beenless kind. (See the comments section of thesame PCMag.com review.) Whatever one’sview of the ubiquitous software, Adobe Acrobat’s many features facilitate the creationof the reproduced record/appendix.

For example, multiple documents can easilybe merged into one with new documentsadded in the beginning, middle or end. After the record is compiled, Acrobat lets you create page numbers in the required format, which in the Pennsylvania appellatecourts is (R. ___ a.) See Pa.R.A.P. 2132(a).Once a template is created in Acrobat, the

numbers will show up on the page in the correct format. If you want to use double-sided pages for the reproduced record, Acrobat permits alternate page numberingfrom the left side to the right side of the page.

The recently adopted Public Access Policy ofthe Unified Judicial System of Pennsylvaniarequires the protection of confidential information. The three Pennsylvania appel-late courts have all entered orders requiringparties to file two versions of briefs — anoriginal version and a redacted version thateliminates all confidential information.

PAL-2019 07-08 P34-48.qxp_Layout 1 6/19/19 7:42 AM Page 49

The Pennsylvania Lawyer 50 July/August 2019

Redacting documents in Acrobat is a mul-tistep process, and it’s not intuitive. If youforget to save or overly redact a document,the only fix is to start all over — a hugepain in the neck. It may not be perfect, butit is easier and more reliable than using aSharpie marker.

Note that the preferred method for creat-ing a reproduced record is to include con-verted PDFs of the contents instead ofscanned PDFs. A converted PDF is fullytext searchable and allows for the retentionof bookmarks and hyperlinks. ScannedPDFs are more limited. See AttorneyGuide to Hyperlinking in the FederalCourts (http://federalcourthyperlinking.org/attorney-guide-to-hyperlinking/).

Finally, be sure to use Acrobat’s tool to Remove Hidden Information to find and remove metadata from a PDF before filing via PacFile or PACER. For more information about redacting and removingmetadata using Acrobat, see https://helpx.adobe.com/acrobat/using/removing-sensitive-content-pdfs.html.

Optimizing Legal Research An appellate brief is only as good as the research that supports it. There aremany legal research programs out there —Casemaker (free for PBA members), Fast-case, Lexis, Westlaw — and everyone hashis or her favorite. Legal research is thelifeblood of my practice as an appellatelawyer. I need a robust search engine withmany different databases. I have been usingLexis for Microsoft Office as a Word add-in for the past several years, and it’s workedwell for me. I particularly like the ability torun an opposing counsel’s brief through theprogram. The program also creates links to all of the cited cases, making it easy toread and Shepardize cited authority.

The big legal research companies are continually upgrading their technology tobe competitive. LexisNexis, for example,recently bought Ravel (https://home.ravellaw.com/), a legal research tool that dis-plays search results visually, along with acluster map showing the relationshipsamong cases and their relative importanceto each other. In March, Lexis finished in-

An appellate brief is only

as good as the research

that supports it.

PAL-2019 07-08 P34-48.qxp_Layout 1 6/19/19 7:42 AM Page 50

The Pennsylvania Lawyer 52 July/August 2019

A few weeks ago, I took BriefCatch for atest drive by trying it out on an allocaturpetition I was preparing to file in the Penn-sylvania Supreme Court. After running theprogram, I made some, but not all, of therecommended changes. The changes im-proved the brief in each of the five Brief-Catch categories: Reading Happiness,Sentence Length, Flow, Punchiness andPlain English. The latter improved themost, an indication that I, like manylawyers, need to cut back on the legalese.The bottom line: Although each changewas minor, the impact was noticeable.BriefCatch helped make my brief morereader-friendly.

WordRake (https://www.wordrake.com/),like BriefCatch, is designed to improvereadability. While BriefCatch puts sug-gested changes in a sidebar, WordRakemarks up the draft. For a side-by-side com-parison of BriefCatch and WordRake, seeRobert Ambrogi’s article “Putting JusticeGorsuch to the Test of Three Legal EditingPrograms,”www.lawsitesblog.com/2018/05/putting-justice-gorsuch-to-the-test-of-three-legal-editing-programs.html.

PerfectIt is a proofreading program that fo-cuses on consistency. The version designedfor lawyers is an advanced Word add-inthat includes styles specifically for lawyers,including legal terms from Black’s Law Dictionary, The Bluebook, and The Red-book. PerfectIt will check for consistency incapitalization use, incorrect word choice,legal style, legal-specific typos (e.g., “statue”instead of “statute”) and errors in pairedpunctuation, such as quotation marks.Note that PerfectIt does not check spellingor grammar — you’ll need one of the otherediting programs for that.

Formatting ToolsThe Pennsylvania appellate rules are preciseabout the formatting of an appellate brief.Pa. R.A.P. 2111 sets forth the contents and order of various parts of the brief ofthe appellant. See also Pa. R.A.P. 2112(brief of the appellee) and Pa. R.A.P. 2113(reply brief ). Other required elements arecontained elsewhere, such as Rule 2117,which lists the subparts of the statement ofthe case. Appellate briefs must also includetables of contents and tables of authorities(TOA). See Pa. R.A.P. 2174.

Given the complexity of an appellate brief,formatting one can be a major headache.Microsoft Word has several tools that areuseful, but there is a learning curve for themore advanced formatting tasks. There are, however, several articles and guides on the web that you can access for help withformatting. One such guide, “Formattingan Appellate Brief in Microsoft Word,”(https://lawyerist.com/technology/

The big legal research

companies are continually

upgrading their technology

to be competitive.

PAL-2019 07-08 P34-48.qxp_Layout 1 6/19/19 7:42 AM Page 52

53The Pennsylvania Lawyer July/August 2019

microsoft-office/word/appellate-brief-for-matting/) provides step-by-step instruc-tions on creating section breaks, usingStyles to format headings, inserting a tableof contents, marking citations and creatingtemplates for other briefs. Formatting pro-grams are not limited to Word. I recentlydiscovered Best Authority, (https://www.levitjames.com/best-authority/overview), a Word add-in that simplifies the process of creating a table of authorities. Best Authority automatically finds and marks all the legal citations in a brief and gener-ates a TOA in seconds. Not only is it fast,but it is very accurate. I tested the programrecently with an appellate brief I waspreparing to file, and the TOA came upclean and accurate. Better still, the program is designed so you don’t have towait until the last minute to generate aTOA. Best Authority keeps earlier changesand customizations and revises the TOA to include new cites and page numbers.

Formatting Briefs for ScreensMany judges and law clerks now read briefson computer screens and tablets. Studies

show that people read information onscreens differently than on paper. See MaryBeth Beazley, “Writing (and Reading) Appellate Briefs in the Digital Age,” 15:1 J. App. Prac. & Process 47, 48-58 (2014).

In 2017, the ABA Council of AppellateLawyers issued a whitepaper titled “TheLead from E-Filing to E-Briefing: Recom-mendations and Options for AppellateCourts to Improve the Functionality andReadability of E-Briefs” (https://www.courts.ca.gov/documents/2DCA-the-leap-from-efiling-to-ebriefing.pdf ). Chapter 4,Readability, provides formatting ideas thatlawyers can use to improve the readabilityof their briefs.

Oral ArgumentAn iPad or other tablet can be an effectivetool for oral argument. A few months ago,I was scheduled for oral argument in theSuperior Court in two unrelated cases onthe same afternoon. To avoid lugging anenormous briefcase into the courtroom, I loaded the argument outlines, briefs andreproduced records onto an iPad and saved

the argument outline in Notability, an iPadapp. I chose Notability because it has ascroll feature that makes it easy to seguefrom one page to the next and back. I wasable to use the accompanying Apple Pencilto make (and easily erase) handwrittennotes on my outline during opposingcounsel’s argument.

Current technology has made it easier toproduce high quality, professional lookingappellate briefs efficiently. At its core, how-ever, an appellate brief is only as good asthe ideas and analysis on which it is based.Basic good lawyering remains the best wayto win on appeal. ⚖

• • • • •

Virginia Hinrichs McMichael is managing attorney of Appellate Law Group LLC, a WBENC-certifiedwoman-owned appellate law boutique based in Radnor; www.appellatelawpa.com.

If you would like to comment on thisarticle for publication in our next issue,please email us at editor@pabar.org.

Current technology has made it easier to produce high

quality, professional looking appellate briefs efficiently.

PAL-2019 07-08 P34-48.qxp_Layout 1 6/19/19 7:42 AM Page 53