‘Thomas J. McDermott his article introduces the Electronic Brief, the greatest thing since sliced bread, although sliced bread has proved more of a hit. When you are finished with this article, you will be able to construct. your own Electronic Brief from items you will find about your office or your home, Love’s Labours Lost: The Electronic Brief, Norma Shearer & Me By Thomas J. McDermott Tom McDermott, a past Chair of the Litigation Section, practices at the Law Offices of Thomas J. McDermott in Indian Wells and is a member of the California Litigation Editorial Board. California Litigation Vol. 22 + No 1 + 2000When you show it to your colleagues, they will be fulsome in their admiration. Your judge should be ecstatic at the convenience ‘you have provided, the time you have saved the court. It is fun and informative, a project not to be missed, requires no glue, and is ab- solutely green. But before we get to the fun part of bits, bytes and links, I will interject a short per- sonal anecdote that describes perfectly my emotional involvement with the Electronic Brief and my subsequent, collapse into unful- fillment, — Brief Fantasy — Initiation into my high school fraternity was conducted on a cold night in January on the beach in Santa Monica. The idea was to run us pledges around on the sand, send us into the freezing ocean, and other unpleas- ant things without attracting too much attention or the police. One of the actives ‘was lrving Thalberg, Jr., and the beach was in front of the home of his widowed mother, Norma Shearer. She was THE Norma Shearer, arguably the greatest movie star of, the golden age of Hollywood, the queen of the MGM lot, the sparker of fantasies in 50,000,000 men. Naturally, we didn't get in the house. That is why we were on the beach. But somehow, on some stunt, I ended up on the Pacific Coast Highway in front of the house and had to find my way back to the beach. I discov- ered a worn path between the house and fence and was poking my way back toward the ocean when I bumped into Norm: Shearer taking out the garbage. She w: startled, but being an actress, quick to recover. “Hello”, she said, “I am Irving's mother.” With my usual sang-froid, devel- ‘oped even before I left high school, I stood with my mouth open and said, “I know.” ‘And did 1 know! Norma Shearer, in an apron, with garbage, had more beauty, class and glamour than all the girls of Santa Monica High School put together. But all I could get out was “I know.” [could have said: “May Ihave your autograph,” or “May I shake “The court has told me that Westlaw will provide its database to the court so that a judge may click on the cited case and go directly to that case in the Westlaw database. That is good of Westlaw, but will it work?? your hand,” or “May I grab you and kiss you since I have fallen madly in love with you in ‘the last 10 seconds.” But no, just “I know.”Miss Shearer (there was no Ms. at that time) returned to the house through the Kitchen door and I returned to the beach. But Twas not through; after all she was a widow. I wasn’t bad looking and quite accomplished, $ Who cares if the judges don't want it. Give it to them anyway since your case will certainly be better argued if the judge can use the E.B. playing second trumpet in the high school band. We had show business in common. Why not? ‘The first obstacle was the awkwardness of saying to tay fraternity brother, “Irving, 1 would like to marry your mother. Will you introduce us?” The second was my apprecia- tion of the fact that Miss Shearer, *Norma” as I felt I would soon be calling her, had made screen love to Clark Gable, Tyrone Power and Leslie Howard and real love to Irving Thalberg, the head of production at MGM and one of the greatest geniuses in motion picture history. Would I compare? I knew lit- tle of carnal love. Let's be accurate. I knew nothing of carnal love, Obstacles be damned, Norma was worth any sacrifice After all, this was the star of The Women, this was Marie Antoinette, Juliet (the one who hooked up with Romeo) and Elizabeth Barrett Browning of The Barrett's of Wim- pole Street, ‘Would Norma be interested in me? Was I too exotic for her? Would she understand me? What was my motivation? (Actually, she would have understood that). And then I asked the right question: Was she already remarried? Yes, she was — to a man much younger than she. So my failure to succeed ‘was just a matter of timing. — Brief Affair — My love affair with the Electronic Brief fol: lows the same trajectory of sudden infatua- tion and gradual let down. My affair with Norma was over in about two weeks. It has been 10 years of unrequited desire with the Electronic Brief. What is the Electronic Brief and why have you never heard of it? The E.B. is a brief on a CD/DVD disk that places everything you need to decide a case within one mouse click. You have never heard of it because the courts have never welcomed it and the judges have not demanded it (as, I might add, they should) Let's look at what the judge receives today on a standard paper brief filing. He/she (she 20from now on) gets exactly what she would expect. At the trial level, say on a motion for summary judgment, she gets points and authorities with references to cases and sup- porting material. Attached are innumerable papers such as documents, deposition ex- cerpts, charts, graphs, whatever you can you think of to advance your case. At the appel- late level, it’s the same with the addition of references to the exhibits received in evi dence and to the transcript of record. ‘The difficulties for the judge are the same, whether at the trial level or at the appellate level, but let's focus on the appel- late level. As the justice reads the brief, there is a reference to the trial transcript. Now she must go to the record and read that portion of the transcript, and to make cer- tain of context, some material both fore and aft of the reference. Next, she comes on a case citation. Does it really say that? Get the Reporter and read it or go on line and read it. The same process follows for a docurnent; find it somewhere in the record, compare it with the alleged content described in the brief and then compare further to see that it is in context, then return to the brief to keep on reading, - Brief Encounters — Now let's look at the Blectronic Brief. Open the brief on the CD/DVD submitted with the written materials (yes, you may still have to submit written materials in most courts). The brief appears on the screen. ‘The first reference to the trial transcript is important. She clicks on it and that portion of the trial transcript immediately appears on the screen, She can read it, and seroll backward and forward in the transcript to review the context because the entire tran- script is on the CD/DVD. One more click on the mouse and she is back to her place in the brief, the place that she just left. The same process works with the cited cases. Just click and she is in the case at the cited reference, which is highlighted. The entire case is there to be read if she needs it. Another click and she is back to her place in the brief. This is how she reviews all of the relevant references in the brief. If a 75-page contract is in evidence, a click takes her to the two highlighted paragraphs that are important. But the entire contract is there if she wants to review it for context. Instead of having to locate hundreds of pages of the material that may be relevant to the decision but are part of thousands of pages of material that are submitted with, or referred to, in the brief, it is all there on the sereen with a click of the mouse, instanta- neously. In cases involving mechanical or scientific evidence, such as a patent case, the value is obvious. Any moving graphics or motion pictures of in-court experiments, can now be put on the record on appeal. ‘The brief and its materials all travel with the judge. She can read it anywhere, at home, (on a plane or even on vacation (perhaps this is why it never caught on) To techies, the Electronic Brief is obvious, at least today. One simply downloads to the computer the brief, the cases, the docu- ments, the transcript, and anything else that one intends to reference. One then links the references in the brief to the particular case, document, transcript, ete, where appropri- ate, However, it was not necessarily obvious 15 years ago when the first briefs were developed. Apparently, several inventors acting independently in various parts of the legal world, carne up with the idea at about the same time. The E.B. we developed was in conjunction with Vinson & Company, a Jury research firm, based in Los Angeles. ‘The principal techié was Vincent Plunkett, computer graphics expert, now with Persuasium Consulting. We simply took the brief, put it on a disk, put all the referencematerials such as documents, cases and graphics on the same disk and then linked them, It took weeks because everything was * The Ninth Circuit Advisory Board, a sort of lawyers’ old sage group, developed a proposed rule to reinstate the E.B. but it went nowhere. It ran into the Circuit's surge to digitize all filings and the assumption was: “Since everything will be digital anyway, why do we need an Electronic Brief?” u ad hoc. Now you can do this at home or in your own office with no more problem than ‘the common electronic frustrations. The only obvious cost is the downloading of all that material. — Brief Difficulties — Those of you with a slightly advanced techno-knowledge will have already caught the clinker in this process. You have to link these references to the right spot in the brief. You know what a link is; you see it everyday on the Internet, It's that phrase, usually in blue or red, where you put the cursor when you want to jump to some. where else. That link in the electronic brief has to be done by hand, It is fairly simple, but time consuming. It cannot be done elec- tronically, at least not now. My estimate is that it will be a long, long time before it c be done electronically due to the subjective choice of the content being linked. In fact, 1 believe that it will never be done electronically. However, the actual construction of the links is not difficult, The subjective nature of the links almost requires the lawyer to do the linking himself or herself. But, once again, all of these references have been developed while writing the brief. ‘Therefore, it is just a matter of additional time devoted to the manual task of the linking. Why don't we have the Electronic Brief now? There appear to be two reasons. First, as should be obvious, this is a device that benefits the judge and no one else. Second, the judges don't want it. — Brief Obstacles — Who cares if the judges don’t want it. Give it to them anyway since your case will certainly be better argued if the judge can use the E.B, The reasons you dont. give it to her anyway are: first, the clerk wort file it; second, the judge, if she gets it, would not Iknow what it was or how to use it. So you need a court rule providing for the E.B. set- ting parameters, filing schedules, digital requirements, etc., and you don't have such a rule, either in California or in the Ninth Circuit, There was a rule in the Ninth Circuit at one tire but it had a sunset clause and the sun sat without a splash. The Ninth Circuit Advisory Board, a sort cf lawyers’ old sage group, developed a pro- posed rule to reinstate the E.B. but it went, nowhere. It ran into the Circuit's surge to digitize all filings and the assumption was: “Since everything will be digital anyway, why do we need an Electronic Brief?” (One can substitute “digital” for “electronic” or visa ‘versa; the information is in digital form, the transmission is electronic.) — Brief Unlinked — For the judges, here is the bad news. ‘Those links, the very guts of the Electronic Brief would mot be in the court's electronic system and none of the values of the Electronic Brief will be available no matter how digitized the system becomes. Yes, everything will be on line, but it will not be linked. If a case is cited in a brief, one will still have to go to Westlaw to read it. Ia ref- erence to the trial transcript is made, one will stil have to get out of the brief, get into the transcript and then find the reference. ‘The links are the great value of the Electronic Brief and electronic technology has not progressed far enough to allow for automatic linking in the subjective manner that is required for a legal brief. In my opin- ion, this will never be done electronically. — Brief Dismissed — Some judges and court personnel will tell you the Electronic Brief is not needed be- ‘cause, “our whole system will be electronic.” Filing in the Ninth Circuit Court of Appeals went all electronic on January 2, 2009. Therefore, the brief will be in digital form. ‘The court has told me that Westlaw will pro- vide its database to the court so that a judge may click on the cited case and go directly to that case in the Westlaw databank. ‘That is good of Westlaw, but will it work? Digital programming to allow this to happen is available, but will it be properly installed — and who will pay for it? And try doing this, on an airplane. The trial transcript is in digi- tal form and will be on file with the court so it should be available to the judge, but to lick on one reference and go there prompt- ly (and then to come back to the brief promptly) requires pretty nifty program- ming that will have to reside somewhere on the system to make this happen. Documents may be digitized, but they will be in Adobe Acrobat or some JPEG format that is no more than a snapshot, not a fully accessible optical character readable document. And. once again, there is programming. And, of course, here we are dealing with Ninth Circuit appellate briefs, not with briefs in trial courts, most of which do not have this electronic whiz-bang stuff yet. ~The Unrequited Brief — ‘The only currently valid and viable method I see to implement the Electronic Brief is to have an Electronic Brief, fully programmed and available on a single CDIDVD, And the irony is that all of this can be done by lawyers in their law firm at a lim ited cost. But we need court rules to do it. Right here, there is supposed to be a call to action but, frankly my dear, I don't give a damn. I have lost my ardor. If sliced bread had gone on the shelves of the market. and no one had bought it, we would still be skewing those loaves at home (along with our fingers) so I give up. I know when love's, labours are lost. ‘The Electronic Brief has real value. It is not expensive. It is needed. But without the ‘welcoming arms of the intended, the judge, it will never make it to the altar.