With the Appeals Court’s implementation of mandatory electronic filing for attorneys in September 2018 coinciding with extensive updates to the Massachusetts Rules of Appellate Procedure in March 2019, as well as with the Supreme Judicial Court’s pilot allowing parties to file electronic briefs with limited paper copies, this is a good time to provide feedback to the Massachusetts bar about some of the changes. As part of this endeavor, we surveyed the Justices of the Supreme Judicial Court and the Appeals Court for their input. What follows is a compilation of their feedback and additional observations. Although the Justices’ responses were not unanimous, they revealed many common themes.
The Monospaced or Proportional Font Option. Rule 20(a) now permits filers to use either a monospaced font (such as Courier New) with page limits, or a proportional font (such as Times New Roman) with a word count maximum. Attorneys frequently ask: What type of font do the Justices prefer?
Justices were evenly split among those who prefer a proportional font and those who had no preference, with slightly fewer Justices preferring a monospaced font. The preferred monospaced font was, unsurprisingly, Courier New; the preferred proportional font was Times New Roman. Sticking to one of these two fonts in your submissions is a safe bet. If you decide to take advantage of Rule 20(a)’s flexibility and select a different proportional font to add some extra flair, heed one Justice’s comment that “if a practitioner wants to try something new, that’s fine, but it must be easy to read.”
A downside to using a proportional font is the extra space that it occupies when produced in 14 point or larger font as the rule requires. A brief that is more than the traditional 50 page limit, even when within the new word limit, may seem longer to the reader using a proportional font because of the larger type size and new pagination requirements. Therefore, it is important to be mindful that the Justices, as always, appreciate conciseness and brevity.
Visual Aids. One way to free up space in a brief is to compile and present information through the insertion of visual aids. Visual aids may include a photograph, image, diagram, chart, or table. For example, in the Statement of Facts section of a brief, filers might consider putting chronological information contained in the record into a timeline format; various criminal charges, convictions, and sentences could be presented in a chart; a family tree could be useful in a probate case; a factually complex property case might benefit from a visual plan or map. While the Massachusetts Rules of Appellate Procedure do not currently contain a provision explicitly allowing or disallowing visual aids, the appellate courts’ practice is to accept them and a future rule amendment is possible.
The Justices commented that such visual aids are “refreshing” and that, “if you created a chart to prepare yourself, then we could use the same chart.” They also observed that, if you do not provide it, they may spend time developing a similar chart or understanding on their own.
But care and attention must be used when preparing a visual aid. Justices remarked, “While it’s theoretically possible, I have rarely if ever seen a chart or graph used effectively[,]” visual aids are “generally no[t]” helpful or only “[i]f well done,” and “[a] little goes a long way. Should be limited to the extraordinary and not [used] in lieu of precise text.” Any visual aid must be based on the record and contain appropriate record or source references.
Electronic Review. Virtually all of the Justices are reviewing documents electronically. There may be a misperception that Justices simply review paper printouts of electronically filed documents. That is not the practice. All Justices of the Supreme Judicial Court and the Appeals Court have iPads, as well as desktop computers, that contain electronic files (PDFs) of each case including the briefs, transcripts, and appendices. The Justices use different programs and applications, primarily the GoodReader app, to search for keywords, highlight text, insert notes, and copy and paste material to aid in drafting a decision. However, to enable the Justices to use these search and annotation features, the rules require that all PDFs be created and efiled using optical character recognition (OCR) technology. OCR is not optional yet many attorneys continue to submit non-OCR documents, which the courts will reject or strike when identified.
In general, Justices remarked that electronic documents are easy to read and the clarity of exhibits is enhanced in the electronic over paper form. They expounded on the unparalleled convenience of having all of the documents at the tip of their fingers to access at any time of day, whether in the office, on the train, or in the courtroom. Although paperless review has some drawbacks, the many positives of electronic accessibility and utility outweigh those shortcomings.
Overall, when asked what effect electronic document practices have had on their review of case files, an overwhelming majority of the Justices responded favorably with only one negative response. The Justices reported a positive effect on their opinion writing, explaining that text-searchable documents, navigation, copying and pasting text, cite checking, and organizing multiple cases is much easier. One Justice responded that poorly organized electronic record appendices make writing much more difficult.
Bookmarks and Internal Links. One message many Justices asked us to emphasize is to encourage electronic filers to add bookmarks and internal links in electronic documents. They assist Justices to navigate a PDF. While internal links are currently allowed by S.J.C. Rule 1:25 but not required, the Justices surveyed overwhelmingly praised the inclusion of bookmarks and internal links in a document. A guide detailing how to create them in a brief or appendix is available on the Appeals Court website.
Filers should consider adding internal links to the table of contents in their brief, addendum, and appendices that allow Justices to “jump” to the various sections of the document. Including and bookmarking the Trial Court decision in the addendum to each brief or application for direct review, or the Appeals Court’s decision in an application for further review, is of the utmost importance. One unfortunate limitation that exists with the efiling vendor’s current program is that hyperlinks cannot be used to link to different PDFs or outside sources, such as a brief’s citations to a separate record appendix or transcript volume. Nevertheless, bookmarks and internal links are critical to the Justices’ review.
The Brief’s New Standard of Review Statement. The Justices unanimously agreed that Rule 16’s new requirement that a brief contain a standard of review section is helpful. However, one Justice noted that not all briefs include the statement, and expressed hope that more briefs will include it in the future, while another Justice commented that although more briefs are including a standard of review, it is not always the correct standard. These responses reveal the importance of ensuring a brief includes a correct standard of review to assist the Justices.
Citations to the Record Appendix. Because a hyperlink cannot be used in a brief to jump to a page in a separate record appendix volume, it is important that filers ensure that record appendix citations used in their brief are crystal clear. A Justice remarked that finding citations can be difficult because of complex references. Another Justice added that it would be helpful if all parties to a case used the same citation convention.
While the rules do not require a specific record citation convention, Rule 16(e) suggests: “RAII/55 (meaning Record Appendix volume II at page 55) or TRIII/231-232 (meaning Transcript volume III at pages 231-232).” It is recommended that you use this format because it is simple, less disruptive to the reader’s flow, and counts as one “word” for length calculation purposes.
Similarly, filers in civil appeals are reminded of Rule 18(b)(1)’s requirements to confer with the other parties at the beginning of each appeal to determine the contents of the appendix. Supplemental appendix volumes are especially apt to create confusion when they needlessly reproduce documents that were already included in the appellant’s appendix.
The “New” Record Appendix. Several Justices remarked that record appendices are often disorganized, contain a poor table of contents (one example given was “Administrative Record – p 1; Judgment – p. 1,265”), and volumes are not paginated so that the document page and PDF page correspond. Rule 18(a)(1)(A)(ii)’s new requirement that the table of contents “list the parts of the record reproduced therein, and includ[e] a detailed listing of exhibits, affidavits, and other documents associated with those parts,” illustrates the detail sought by the Justices.
Common Oversights. In addition to the Justices’ feedback, we also surveyed personnel in the Appeals Court’s Clerk’s Office to determine the most common omissions or errors they encounter when reviewing electronically filed briefs and appendices. They are:
(1) the brief or appendix is not OCR-searchable;
(2) the brief fails to comply with the pagination requirements in Rule 20(a)(4)(a), which requires filers to start a brief’s numbering with the cover as page 1, and eliminate the use of lower case Roman numerals for the tables of contents and authorities; the purpose of this rule is to have the brief paginated identically to the page numbers of its PDF version so that page references are easily ascertainable by the Justices;
(3) the absence of an addendum, which Rule 16(a)-(c) requires for any brief, and a table of contents for the addendum;
(4) a brief’s addendum, or a portion it, is not searchable using OCR while the rest of brief is OCR-searchable;
(5) Rule 16(k) brief certifications that are incomplete, specifically missing the required language identifying the filer’s calculation of the Rule 20 length limits; the court will not accept a brief without a compliant certification; and
(6) failure to include a complete table of contents in the first volume of a multi-volume appendix as required by Rule 18(a)(1)(C), or not including a table of contents in each separate appendix volume for that volume.
If you need any assistance or desire to double-check the requirements before uploading your PDF, the Appeals Court website provides detailed guidance for formatting documents for electronic filing, including checklists, and Clerk’s Office personnel are available to answer any questions.
Conclusion. After decades, and even centuries, of Massachusetts attorneys submitting and Justices deciding appeals on paper, much has changed in the past year. We hope these insights into the Justices’ current practices, preferences, and challenges will assist you in updating your practice to satisfy this new age of appeals.
Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on several court committees involving procedural rules of court and technology initiatives.
Julie Goldman is an Assistant Clerk of the Massachusetts Appeals Court. She has been working on the Judicial Branch’s electronic filing program since 2013 to bring electronic filing to the state courts through drafting the electronic filings rules and working with vendors to develop and implement efiling.
by Hon. Maura S. Doyle, Francis V. Kenneally, Joseph Stanton and Kim J. Wright
Voices of the Judiciary
In the spring of 2014, the Massachusetts Judicial Branch contracted with Tyler Technologies, Inc., to pilot e-filing through Tyler’s Odyssey File and Serve platform. Although the Federal PACER system is well established, it is not available to states, necessitating that Massachusetts develop its own system. Three departments of the Trial Court, and each of the appellate courts, designated certain case types – and in the case of the Trial Court departments, pilot locations – for their respective e-filing pilots. Over the next 18 months, pilot court personnel teamed with the Courts’ Judicial Information Services Department and Tyler Technologies to establish both a general e-filing system for the Judicial Branch and specific systems tailored to each pilot court’s particular filing requirements. After extensive testing and training of volunteer attorneys for each pilot court, attorneys who regularly filed pilot case types in those pilot courts were invited to e-file. The e-filing system allows a user registered with Tyler to remotely upload a pdf for a court filing in a specific case, select the appropriate court description of the filing from a dropdown menu, electronically serve it on other parties, and file it electronically with the court, generating an appropriate entry on the docket and a link to the pdf in the court’s document management system, without any paper original or duplicate being filed. Tyler charges a modest convenience fee for civil filings that the courts can waive for indigent parties and government filers.
Beginning in the fall of 2015 and continuing through the spring of 2016, the various pilots were conducted on a phased basis. In June 2016, participants conducted an assessment of the pilots, toward a decision whether to proceed with Tyler beyond the pilots to full implementation. Attorneys were asked specifically for input on the registration process, the value of any assistance received from the vendor and specific questions about the e-filing process, including adding service contacts, serving documents through the Odyssey File and Serve, uploading pdfs and making payments.
Overall, responses to the survey were positive. The overwhelming majority of attorneys indicated that they did not encounter problems in registering as a filer, found filing cases to be “easy” or “moderately easy,” had little difficulty uploading PDF documents, and did not encounter problems with making a credit card payment. Comparatively modest concerns were identified for adjustment and improvement during continued implementation. Based on the positive results of the assessment, the Supreme Judicial Court, the Appeals Court and the Trial Court decided to move forward with Tyler Technologies and expand e-filing.
A Closer Look
Before describing the current – and future – state of e-filing in the Appellate Courts it is worth taking a brief look back at the foundation the Courts built over the past decade, in preparation for e-filing. During that time, the Courts have adopted a number of paperless practices, including: scanning decision-related documents (e.g., briefs, transcripts, and record appendices); coordinating with the Trial Court for production of transcripts in PDF; adopting standing orders for court notices and filings by e-mail; permitting electronic signatures and service; encouraging Judges and court personnel to utilize PDFs and electronic editing features in their daily work, and equipping them with the necessary software and hardware to do so; storing PDFs in the Courts’ document management system for access by all court personnel; electronic distribution of, and remote access to, case documents by Justices; and, within the Appeals Court, reducing the number of required paper copies from 7 to 4. Briefs in non-impounded cases scheduled for argument are made available to the public on the Courts’ website. For the past year or two, the overwhelming majority of judges on the Appeals Court, and a majority of the Justices on the SJC, have prepared for, and participated in, oral argument working exclusively from PDFs on an iPad, and iPads also are used by staff attorneys and other personnel to assist in their paperless practice. The Reporter of Decisions electronically edits and publishes the Courts’ opinions, and has transitioned to a completely paperless release of advance sheets.
In addition, the SJC for the Commonwealth has transmitted briefs and transcripts to the U.S. Supreme Court via cloud-based technology. Within the SJC for Suffolk County, more than 3,000 annual petitions for admission to the bar are scanned and electronically stored, before being digitally reviewed by the Board of Bar Examiners, single justice decisions are electronically transmitted upon request, and most written communication between counsel and the clerk’s office occurs by email. More than 4,000 annual filings of required bar admission data from law schools and the National Conference of Bar Examiners, formerly in hard paper copies, now are filed in digital format and are stored in the court’s case management system, and partial electronic processing has led to a reduction by more than fifty percent in hard copy paper filings incident to requests for Certificates of Admission and Good Standing. Finally, the Appeals Court stored over 17,000 pdfs of court filings in 2016.
In sum, the paperless foundation and experience developed over the past decade has prepared the Appellate Courts for the advent of electronic filing.
The Supreme Judicial Court for the Commonwealth launched its e-filing pilot on November 2, 2015. For the first time, attorneys e-filed applications for direct and further appellate review, a significant departure from past practice where the appellate rules require 18 paper copies – on average over 1000 pages per application. The build-up to the launch required extensive planning by the clerk’s office and assistance from attorneys, civil and criminal alike, who beta-tested and provided critical feedback that led to improvements in the e-filing system. On October 14, 2015, Clerk Kenneally conducted a free e-filing seminar sponsored by MCLE and attended by hundreds online and in Boston. MCLE continues to offer the archived program free of charge on its website. Perhaps the most telling statistic to illustrate the success of e-filing to date is the high rate of attorney participation particularly in light of national averages where e-filing is not mandatory. Tyler Technologies, the project’s e-filing vendor, estimates that participation rates in states where e-filing is not mandatory is about 15%. The clerk’s office for the Commonwealth presently has an estimated 80% participation rate that has led to substantial savings in time and money for attorneys who no longer have to worry about the burden of printing paper, delivering applications, and rushing to the courthouse by closing time. For the Justices of the Supreme Judicial Court, accustomed to reviewing over 100 paper applications monthly, e-filed versions are now loaded onto iPads that provide portability and ease of use. At present, expansion from applications to briefs and appendices in full court cases is under review and the clerk’s office hopes to offer further relief from paper production in the future.
In January, 2016, the Supreme Judicial Court for the County of Suffolk initiated its e-filing pilot, encompassing all bar docket cases filed on and after January 1, 2016. This required extensive training of the staff at the Clerk’s Office, Office of Bar Counsel and the Board of Bar Overseers (BBO). Because bar discipline actions are initiated by only two entities, the Office of Bar Counsel and the BBO, all such actions are now filed electronically. Any responsive pleadings that are not e-filed are scanned by the County Clerk’s Office, thereby making all pleadings entered in any bar docket cases filed on or after January 1, 2016, entirely electronically available. In 2017, Clerk Doyle will be implementing the e-filing of petitions for admission to the bar on motion and, thereafter, petitions for admission to the bar by examination.
Among all the Courts, e-filing is perhaps furthest along at the Appeals Court. The Appeals Court launched its e-filing pilot in March 2016, allowing attorneys to initiate and file most documents electronically in civil, non-impounded panel appeals, without any paper original or duplicate filing. The court has since expanded its program to include criminal appeals, self-represented litigants (SRLs), andimminently, the single justice (“J”) docket (e.g., interlocutory petitions). The Appeals Court now accepts electronic filing of nearly every type of document from attorneys and SRLs in all non-impounded cases, with no paper required. Thus, briefs, record appendices, transcripts, motions, status reports, and payment of entry fees may be filed electronically.
Attorneys and SRLs are enthusiastic and e-filing at high percentages, with participation tripling over the winter as several hundred e-filings are submitted monthly. E-filed briefs already exceed the number of paper briefs filed each month and the parties–including CPCS and government filers–are saving significant costs by not providing multiple paper copies of record appendices. To file and serve electronically, filers first need to become familiar with new procedures and software programs. Creating a PDF with optical character recognition, merging a word-processed brief with a scanned addendum into a single PDF, or creating an e-filing account and identifying service contacts for each submission involve new steps–but once completed are easily reproduced the next time. The Appeals Court’s website provides detailed e-filing explanations and user guides about the court’s procedure and format requirements.
Upon entry of every new case in all three appellate courts, the clerk’s office notifies the parties in writing about the availability of e-filing and includes information on how to become a registered user and to view information on e-filing, including court rules and training videos, through Tyler Technologies. The Clerk’s Offices in all three appellate courts also provide daily telephone assistance to e-filers and have held several public training seminars.
The Appellate Courts’ e-filing programs have increased access to justice by providing SRLs the opportunity to e-file and substantially reducing their copying and shipping costs. Further, indigent parties may obtain waiver of e-filing related costs. Additionally, the Clerks’ Offices provide a public computer with a scanner where any litigant or attorney can scan and e-file documents. In addition, the Appeals Court has launched a pilot program allowing Trial Courts to electronically transmit the assembly of record on appeal, and the SJC and Appeals Court send electronic notices of orders and decisions to lower court clerks, judges and counsel (in the case of the SJC for Suffolk County, Bar Discipline orders and decisions similarly are sent electronically to the Board of Bar Overseers, the Office of Bar Counsel, respondent, and counsel).
The Trial Court piloted the program at three separate courts – Worcester District Court in September 2015, the Brighton Division of the Boston Municipal Court (BMC), and the Essex Division of the Probate and Family Court in early 2016. The Quincy District Court became an additional site in March 2016. In the District and Boston Municipal Courts, the pilots included civil case types, while the Probate and Family Court designated Estate Cases to be e-filed.
For the past several months all Trial Court departments have been actively engaged in planning expansion and implementation, with the pilot court departments taking the lead. In those departments, the expansion includes additional case types and locations. Over the next six months, the District Court and BMC will work to provide e-filing for all civil cases, including small claims and supplementary process in all locations. The Probate and Family Court will expand to all locations and will increase available case types from the designated Estate Matters to Divorce complaints filed pursuant to G. L c. 208, § 1B, and adult guardianship matters.
The expansion of e-filing in these departments will be done through a series of phases beginning in the spring and continuing throughout the year until the opportunities for e-filing are available at all of those court locations throughout the state. The expansion is being planned by geographical regions in order to provide attorneys with the opportunity to use the electronic filing in the various courts they frequent. In March, Probate and Family Court locations in Bristol, Norfolk and Duke Counties and District Courts in Fall River, Attleboro, Taunton, New Bedford, Edgartown Brookline, Dedham, Stoughton and Wrentham all went live. The second phase, scheduled for early May, will bring e-filing to Probate and Family Courts in Plymouth, Barnstable and Nantucket, and District Courts in Barnstable, Falmouth, Orleans, Nantucket, Wareham, Brockton, Hingham, Plymouth, Milford and Uxbridge.
Plans are also underway to expand e-filing to the Land, Housing and Superior Court Departments. Implementation teams are meeting and plans for intricate code set up and integration and testing are in place. A comprehensive effort to train employees across the state is planned and Tyler Technologies will provide materials and free training opportunities for the bar.
The Superior Court pilot will offer e-filing for all tort actions. The Superior Court will begin by piloting the process in Middlesex and Barnstable Counties and then expand to the remaining County locations.
The Housing Court pilot will make e-filing available in Small Claims and Summary Process matters. The initial pilot site will be the Boston Housing Court.
The Land Court is in the early planning stage but its singular location will ensure a quick roll out once set up, testing and training is completed.
Tyler Technologies has also provided the Trial Court with access to its online guided interview tool, Odyssey Guide and File, for self-represented litigants. The Guide and File technology provides the opportunity for the Trial Court to improve Access to Justice for self-represented litigants through the creation of on line interviews that populate the court form that will eventually be e-filed into the system. The first such interview technology has been designed for use in Small Claims actions. The Trial Court also plans to use this tool to develop a similar instrument for Summary Process matters, another case type of interest to a large percentage of self-represented litigants.
Interim Electronic Filing Rules for Pilot Courts were approved by the Supreme Judicial Court in February 2015 with accompanying Standing Orders in each of the pilot court departments. As the courts move ahead with the expansion of e-filing, proposed amendments to the interim rules, and adoption of Rules of Electronic Filing Procedure, are posted for public comment until May 31, 2017, and thereafter will be submitted to the SJC for approval.
The Trial and Appellate Courts have established a listserv to provide updates and information as e-filing progresses. If you would like to receive periodic updates on e-Filing as they become available, you are welcome to join the e-filing news list serve. To join, just send an email to email@example.com
The e-filing pilot courts appreciate the efforts of the court personnel, the Judicial Information Services Department, Tyler Technologies, and participating attorneys in establishing the e-filing system. The Judicial Branch welcomes the commencement of electronic filing in the Massachusetts state courts, and invites you to begin e-filing at efilema.com.
The Honorable Maura S. Doyle is the elected Clerk of the Supreme Judicial Court for the County of Suffolk, an attorney and a member of the Supreme Judicial Court’s Standing Advisory Committee on Civil and Appellate Rules, Information Technology Steering Committee for the Appellate Courts, and Standing Advisory Committee on Professionalism.
Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth and is an attorney admitted to practice in Massachusetts, Maryland and the District of Columbia.
Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on numerous Trial Court and Supreme Judicial Court committees, including as co-chair of the e-filing rules subcommittee.
Kim J. Wright is the Senior Assistant for Judicial Policy in the Executive Office of the Trial Court working closely with the Chief Justice of the Trial Court and the Court Administrator to ensure the integration and coordination of judicial policy planning and initiatives. She is a graduate of Suffolk Law School.