Studeo Legal

The Texas Supreme Court and Hyperlinked Electronic Briefs – the New Paradigm in Briefing Documents

The Texas Supreme Court signed an order on March 1, 2011 allowing the filing of hyperlinked electronic briefs for all documents reviewed by the court.  These include the Petition for Review, Responses and the Requests for a Full Merits Briefing. In fact, the Court prefers that all documents filed for their review be in hyperlinked format.  The justices like the way that a fully integrated brief filing allow them to instantly access all the supplemental material that are submitted as evidence. We have developed an Ebrief alternative that includes document compression so that a hyperlinked document can easily be submitted using the court’s Efiling system.

Since more than 67% of all cases are decided on the written record alone, without the advantage of oral argument, it is extremely important that you provide the Court with your argument in the most accessible format.  Hyperlinked EBriefs answer that need.

What is a Hyperlinked EBrief?
An EBrief is a powerful platform to send your message to the Court. Your brief or motion is transformed from a pile of paper to a living, interactive digital document which brings your case to life. Trial Brief Pro integrates exhibits, deposition video and transcripts, cases, rules, statutes, timelines, demonstratives and audio/video clips into a single hyperlinked document ready for review by the court. Your entire submission is available with the click of a mouse. It is then EFiled directly to the courts docketing system and made available to the Justices and their Clerks for analysis and review

What are the advantages of an EBrief?
In the courtroom, you have been eloquent, persuasive and focused. All your PowerPoint and demonstrative evidence have shown precisely why your argument should be accepted by the Court. While listening to your expert explain your case, the words, visual models and testimony form a powerful argument.

During the appellate process, you wonder what the best method is to engage the Court in your argument. You want to make your argument is as interactive as possible, providing instantaneous access to all your support documents, case law and prior presentations. You want to be able to answer all of the following questions:

Will the Judge be able to easily find your key evidence again that you know proves your case? And if they do, will they see it in the proper context? With the right testimony? How do you effectively continue your argument from the courtroom to the Supreme Court?  By submitting a hyperlinked electronic brief that contains all your documents the answer to all these questions is yes.

Why is Compression of Data Important to EBrief Filing?

Effective September 12, 2011, all attorneys are also required to file all documents with the Texas Supreme Court through the Texas.gov electronic filing system.  To use the electronic filing system you must select a qualified electronic filing service provider and register for their services.  Trial Brief Pro hyperlinked and compressed electronic briefs can be Efiled using any of the available services. 

Trial Brief Pro has the best solution to fulfill the Texas Supreme Court’s preference to receive hyperlinked electronic briefs for court submissions and have documents submitted using the EFiling system. Our hyperlinked EBrief service creates a highly compressed format that can be submitted directly into the courts docketing system using an approved EFiling service.  They are immediately available to all court personnel.

The compression and OCR algorithms that we use in our process means that electronic documents will be accessed faster, allow full text searching on documents that are scanned images and require much less storage space. We compress your document files, reducing file size, without sacrificing the quality of your documents. The reduction in document size is important when working with the courts system due to size limitations in EFiling processes and it also improves the document retrieval speed when accessed by the Court. The pages will appear instantaneously when accessed by the user.

Pricing and Services

We have developed a two stage pricing program to submit EBriefs to the Texas Supreme Court to serve your needs.

Petitions for Review
The cost to submit a completely hyperlinked Petition for Review brief is capped at the flat rate of only $695.00.  This price includes:
 1)  All links required in the 15 page brief, including the Table of Authorities and Table of Contents
 2)  All compression required up to 1,000 pages of documents
 3)  24-36 hour project completion

Full Merits Brief
The cost to submit a Merits Brief is determined on a case-by-case basis, depending on the size of the submission, the number of links included in the brief and the number of cases and exhibits that are referenced and need to be hyperlinked.  In general, hyperlinks are billed at a rate of $3.00 - $4.00 depending on the size of your project.  Once we have discussed the parameters of the project, we will submit a Project Proposal outlining the expected costs of the project. 

Please contact us directly to learn more about this new service to the Texas Supreme Court.  We can be reached at 877.275.2513.
Visit our Website, http://www.trialbriefpro.com/ for full details.

 

 

The Markman Process is Changing – US District Judge Leonard Davis (Eastern District of Texas) Pushes a New Approach

I have written in the past (November 15, 2010) about how using EBrief technology can improve your changes of a favorable ruling during a Markman hearing. EBrief technology is advantageous because they provide immediate, hyperlinked access to the complex material that you have prepared for the court. Providing the court with an electronically linked set of documents and demonstratives that is fully text searchable assures you that the Judge can re-access the key information you have emphasized during the hearing.  They can help move the process forward on an expedited basis.

US District Court Judge Leonard Davis of the Eastern District of Texas is employing an additional tool to help expedite patent cases.  He has begun to set early claims-construction hearings in some patent cases that some are calling “Mini-Markmans”.  A full Markman hearing is a crucial and often time consuming part of a patent infringement suit wherein the judge interprets the patent claim as a matter of law.  The goal of the Markman is to define the scope of the patent rights by the holder.  Then the court can make a determination during the trial as to whether or to what extent the patent has veen violated.

Patent litigation is further complicated when there are a large number of defendants involved in the claim, especially if the plaintiff is seeking a nominal settlement from each defendant.  When defendants argue that a few claims-construction issues could dispose of the cases, Judge Davis asks the parties to focus on the key issues early in the suite and provide short briefing statements of explanation.

The goal, according to Judge Davis is to level the playing field where the defendant’s choice is often to “pay a little money to settle the case(s) or pay a lot to undergo a full trial and be vindicated.  By focusing an early Markman hearing on the key issues in the case, it can provide valuable insights to the defense about which strategy makes sense in the long term.

Since the Eastern District of Texas are extremely popular with patent litigations due to both firm scheduling rules (read expedited)  and the expertise of the bench in handling complicated patent case, Judge Davis is trying to remove any advantage a litigant seeks by filing under the courts streamlined patent process. He does not want the court rules used to force settlements on defendants without exposure of the viability of the top construction claims in question.  By providing a forum early in the case to brief the major issues in the case, both sides in a patent case are forced to reveal important information about their position which can then be evaluated by the sides in determining a case strategy moving forward.

Combining Judge Davis’s approach to early claims briefs and summary judgment motions, along with a complete hyperlinked presentation system (EBriefs) will allow parties to obtain the best of all worlds; an effective early argument focused on the key points in question presented in manner that makes it easy for the court to understand the claims. The combination will help parties make the correct litigation strategy decisions before years of litigation and untold sums of money are spent. 

Other Key Advantages of Creating and Filing Hyperlinked Electronic Briefs

Having been involved in the creation of hyperlinked briefs and the technology to create them for over 12 years, I am clearly a cheerleader of their increased use and filing.  I believe that an EBrief is a far superior method of delivering information to the court in support of your clients’ position.  It should be used in the majority of filings in both State and Federal courts, for briefs and major motions.  For further details on EBriefs and EBrief technology, please CLICK HERE.

Despite the fact that EBriefs have been around for over a decade, I still receive questions on a daily basis asking what the advantages are of creating and filing them.  In this post, I will address a few of the more recent advantages I have described to inquiring minds who want to know……

1.  Can EBriefs Offer me an Advantage?
Lawyers are constantly looking for and advantage or edge over their opposition.  The don’t hesitate to employ the best expert witnesses, preparing the best opening statements and crafting the best written argument to provide the judges with material to allow them to rule in favor of their clients. 

 a.  EBriefs are the best tool available to improve the presentation of your written material to the court by improving the flow of your argument.  I have heard from attorneys who say that they have adapted their writing style to take advantage of the ability to instantly and repeatedly link to an important piece of evidence or a key citation that is pivotal to their argument.

 b.  Providing order in a complex case.  No one is capable of keeping mental track of every piece of evidence that you have presented to prove your case.  Imagine how an EBrief would improve your submission to the court when it referenced 150 cases and statutes and 3,000 different exhibits (really only a medium sized filing).  By providing a digital method of instantly accessing whatever piece of evidence caught the courts attention, EBriefs assure the reader that they can instantly access information to obtain an answer while the question is still fresh on their mind.

 c.  Not every one is using them yet.  How is that an advantage?  Imagine the judge receiving briefs from the two parties in the litigation.  The plaintiff submits only a paper copy accompanied by 15 volumes of exhibits, bound together and delivered to the court in 5 bankers’ boxes.  The defendant submits the paper requirements to the court but goes the extra step to supply a hyperlinked EBrief to the court which will allow the court to instantly look up any case citation or review a key contract document with the click of a mouse.  By making it easier for the court to review more material, you increase the likelihood that the court will better understand your argument.

2.  Can EBriefs integrate audio and video?
Many cases litigated today include video demonstratives that have been created at great expense to help tell a story to the jury.  Oftentimes, depositions are video taped and key segments are played to the jury to reinforce a witnesses ‘live’ testimony.  Animations and reconstructions are created to provide a visual picture of the situation.  The problem is that this material is rarely used by the court during their review of the written briefs because it is to time consuming to launch and then find the electronic file.

 a.  When you submit an EBrief, you can easily integrate photos, video and audio files directly into your written argument.  The user can move seamlessly from the text in the brief to launch the video that offers the proof of the statement.  Hyperlinks allow the writer to get that important evidence back in front of the judge another time to make sure that the point is remembered.  In effect, an EBrief is a multimedia presentation to the judge in chambers, improving clarity and answering questions on the spot, while the reader is engaged.  In fact, it is the closest thing to oral advocacy in the Judges' Chambers.

3.  Do judges actually use an EBrief to review the case?
Some people have expressed a concern that the extra time and money to create an EBrief may not be worth the effort.  What if the court relies solely on the paper version and ignores the electronic version?
 

a.  Any good EBrief service will only recommend the creation of an EBrief when they have knowledge about that particular courts requirements and use patterns.  While many courts have not yet adopted formal rules regarding the submission of EBriefs, there are thousands of courts that are more than happy to receive them when they are created.  A simple phone call to the Clerk of the Court will determine whether the court encourages EBrief submissions and whether a motion is required to request permission to file one.  At Trial Brief Pro, we will make sure that each EBrief filing is compliant with the Court’s expectations and requirements.
 

b.  From a technology perspective, Court computer systems have all been upgraded in the last ten years and can handle the receipt of an EBrief on CD, DVD, Flash drive or through a direct download.  From a personnel perspective, both the judges and their clerks are now computer literate, and they appreciate the advantages that EBriefs offer to them in terms of efficiency during their review process.
 

c.  As we move further into the future, and E-filing systems completely replace the requirement for paper versions, those attorneys familiar with EBriefs (what we call E-filing on steroids) will be ahead of the curve in compliance with the court rules.  EBriefs are an extremely “Green” alternative to the submission of 10 paper copies of the brief and complete volume sets of exhibits.

4.  EBriefs and “PAD” technology
Many law firms and courts are making the transition to the use of “Pad” technology, with the iPad clearly taking the lead.  Can EBriefs be created for use on the iPad?
The short answer is yes, EBriefs can be created to run on iPads.  However there are a couple of caveats that should be recognized before the commitment is made to submit a tablet version of the EBrief.

 a.  A determination must be made before work commences on whether to create a “regular” EBrief for PC use vs. an iPad version.  Since the technology is a little different, it is not simply a matter of copying a PC version to the iPad and having it function flawlessly.  The primary reason for this is that iPad does not work well with Adobe Acrobat, the default format adopted by most courts.  In order for an Adobe to function properly on an iPad, the user must also have a secondary tool installed on their system.  Some courts do not know this and will not allow external software to be added to their systems.
 

  b.  In addition, when it is created, an iPad EBrief must be created in a single PDF file format (not a multiple file directory which is the preferred format for EBriefs to increase efficiency).  The disadvantage of a single file format is that as the submission gets larger and larger, it is more difficult to navigate between the brief and supplemental documents, with document recall response time adversely affected from the user’s perspective.  Trial Brief Pro has created a number of EBriefs in this format, but it requires some discussion beforehand to assure it is the proper choice.

Today’s litigation climate often requires the presentation of information in a user-friendly, well-organized manner. Law firms and clients are beginning to look for the best and most accessible formats available for their briefs. EBriefs are the answer that many have been searching for without knowing exactly what they wanted.  Make sure you use an experienced EBrief vendor that can provide you with good advice, complete answers to your questions, a fantastic end-product that meets the court requirements,  and does so both in a cost-effective and timely manner.  For further details on EBrief technology, search for prior blogs on this page or visit Trial Brief Pro.   

 

Blunders in Texas Supreme Court Briefs – and How Hyperlinked EBriefs can Help

This is the second blog we have written recently regarding Appellate Brief writing issues that should be avoided.  While it is tailored to issues that have arisen in The Supreme Court of Texas, the lessons can be safely applied to any appellate level submission.  Hyperlinked EBrief submissions can help you address a number of the issues highlighted by the article.

On Friday, August 8th, Texas Lawyer published an article “Common Blunders in Texas Supreme Court Briefs”, written by Martha Lackritz, who just finished a two-year clerkship with Chief Justice Jefferson.  Her article should be read by every appellate attorney in the State of Texas, especially those who practice in front of the Supreme Court.  Her article is a goldmine of tips on how to improve your submissions and an inside look as to what the court is looking for in advocacy.

Ms. Lackritz provides a concise list of 8 major blunders that the court encounters when reviewing the briefs on the merits.  I have chosen three points that really jumped off the page to briefly summarize; primarily because through the use of hyperlinked EBrief technology, it is very easy to remedy these problems. 

1.  Too Few Citations – Many lawyers fear that over citing cases will merely confuse the issues and make it difficult for the reader to arrive at the proper conclusion.  While she does not encourage writers to over cite the number of cases needed to make a point, she encourages writers to direct the reader to list some persuasive cases that truly reinforce the strength of the argument.  Lawyers should highlight cases that would not easily be discovered through independent judicial research. Directly the judiciary to these related cases is a way to bolster your argument.

2.   Lack of Record Citations – Texas Rule of Appellate Procedure 38.1(i) requires citations to the lower court record.  Writers should avoid making unsupported statements that rely on the facts of the case without supplying the direct proof to the court.  Most court records are voluminous and at the appellate level, the court is not familiar with the entire body of evidence.  She wants writers to point out the admission or stipulation that was made during a deposition that supports the statement being made, and not make the court search for it.  Providing each instance from the record that supports a statement may be the determining factor that convinces the court to accept the argument.

3.  Unaddressed Counter-Arguments – It sometimes seems to be difficult to write a cohesive argument to counter the opposition since referencing the material in pure written form can be clumsy.  However, ignoring an argument against a client’s position often seems to validate them for the court.  Advocates must deal with all facts, and all law, both good and bad.  The most effective way to deal with them is to acknowledge them briefly and then dismiss them in a factual manner, providing evidence as to why they are “irrelevant, distinguishable or inapplicable”.

How can this be achieved?
The Supreme Court of Texas has recently provided some rules that will help in this process since they now encourage the submission of hyperlinked electronic briefs.  In the era of hyperlinked electronic brief technology, it is easier to create an effective argument that seamlessly includes references to legal citations, the lower record and your opponent’s argument. 

Writers can craft sentences in ways that emphasize certain support material and provide instant access to that material, making a very strong argument even stronger. Integrating your evidence into your arguments electronically provides the court with a way to access what they want, when they have a question about the statement without interfering with the flow of your argument. 

Providing a link to the lower record allows the writer to provide a shorter reference in the brief itself, while providing access to the entire statement that is key to the argument.  Likewise, having the ability to refer the reader to the counter argument in total, without having to provide the full content in the appellate brief means that statements can be written with more clarity.  Hyperlinked EBriefs can help improve your argument, call us to find out how.
 

 

Hyperlinked Electronic Briefs, Not Just for Appeals Anymore

When I first started creating hyperlinked electronic briefs (EBriefs) in the late 1990’s, very few litigators had heard of them or knew how effective they could be as a form of presentation advocacy. (For information on these topics please visit my previous blogs on Hyperlinked EBriefs). They were somewhat complicated to create and took anywhere from 4 days to two weeks to complete, depending on the length of the underlying documents.  So the early impediments to EBriefs were threefold: awareness, time to create and the high cost.

This is the primary reason that the early use of EBrief technology focused on the Practice of Appellate Law.  Federal and state appeals courts have extensive rules in place that provide a regimented timeline for a briefing schedule, unlike the trial courts.  The document population was fixed from the beginning of the appeals process and the established schedules allowed service bureaus the time to create a quality end product.  This led to the establishment of a dedicated core group of EBrief users, and just as importantly, a group of judges who began to understand the advantages that the technology offered to the courts.  The question for early providers like me has been how to expand the market of users.

After over 12 years in the industry it boiled down to the three original impediments; increasing acceptance by firms, clients and courts, shortening the time frame to create them and lowering the cost to produce them.  Easier said than done.  But in fact, that is exactly what has been accomplished over the last decade.  We have spent a lot of time providing seminars, webinars and CLE programs to lawyers and judges to demystify the technology so people understand their utility.  We have spent countless hours refining our internal processes, developing new software and training staff so that the service can be delivered on a timelier basis. What used to take my team 5-6 days to produce can now be achieved in 24 hours so the types of cases they can be effectively used on have grown.  All of these improvements have translated into lowering the cost to produce a quality product.

What does this all mean?

Focusing on the original core impediments and solving the issues have changed the application of this technology, once reserved for the appeals process.  It now makes perfect sense to present your documents at all levels of advocacy, from pretrial motions through post-trial hearings and everything in between.  We now regularly file EBriefs for clients at all levels of federal and state courts, throughout the entire litigation process.  They are as effective in a discovery motion as they are in a patent filing or a complicated post-trial filing.  The Chart below is a visual representation of all areas of the law where EBriefs improve the presentation of your filing by the court.

 

Remember some key facts when determining how you can improve your method of presentation to the court and provide the most effective advocacy for your clients.  Don’t take the chance that all of your hard work on a trial or set of briefing papers might go to waste because a judge gets lost in a voluminous, dry paper record.

• Over 90 % of all cases never go to trial and are decided on the full briefing schedule alone.
• Up to 1/3 of all cases are modified and/or reversed on appeal.
• Courts rarely have the opportunity to review all the documentation submitted in paper form due to volume and time restraints.
• Electronic Briefs increase the effectiveness of court review by providing instant access to all cited documents in context.

In addition to the more traditional legal uses mentioned above, the same technology has been effectively used to create electronic versions of the following for improved document access:

• Trial record reviews
• Preparation for oral argument
• SEC filings
• Investigative reports
• Business transaction records
• Syndicated debt projects

Clearly, hyperlinked EBrief technology has gone far beyond the original Appeals market. 

 

 

Visual Presentations and their Effect on Juries… but don’t Forget the Court.

Ted Brooks, from Litigation Tech, brought this interesting article to the attention of Trial Consultants through a Linked-In reference story.  “Courtrooms Now Aglow with High-Tech Methods for Telling Better Visual Tale” is a story that appeared in the Mercury News in California. This story offers an important trend analysis for any attorneys who practice before juries about their expectations regarding presentation of evidence.  Given that both jury members and judiciary live in the same world of visual presentation, it is important to extend the story to include a discussion about interactive visual presentations (Hyperlinked Ebriefs) to the court as the final, most effective way to influence the court about your client’s case.  Remember, judges are people too!

The Mercury News story discussed the growing trend of attorneys using technology in increasing amounts in order to win over the juries that are sitting in judgment of their clients.  Attorneys are using the same technology that we are all accustomed to seeing on television – video and audio clips, large-format photos and synchronized deposition testimony – which are all designed to add a three dimensional, interactive presentation to the “audience” in order to keep them engaged.
In fact, the Santa Clara County district attorneys office has asked a technology consultant to prepare a presentation for his staff on the topic because “it is important to show and tell, not just tell”.  Jury visuals help describe complex issues, keep parties attention and effectively provide context for often more boring documentary evidence.  Some people feel that this is a move towards lowering the bar in order to “entertain” the jury, I believe it is the realization that we are a visual society and in fact, that we comprehend and retain visual evidence more easily than the written word.

"Juries seem to love visuals, even if it's just jury instructions,'' said Judge Jerome E. Brock, who hears criminal cases in Santa Clara County Superior Court. "I see it more and more.''

Given the growing acceptance of the influence that visual evidence has on juries, it is not a large leap to consider the impact a digital presentation can also have on judges and their clerks either for motion practice or post-trial submissions.  When you have already spent money and time creating a visual presentation to the jury, it only makes sense to provide that information for further review by the judge, often the final arbiter of the evidence. 

To that end, hyperlinked electronic briefs (Ebriefs) provide the missing link in your visual evidence presentation format.  They provide instant access to all facets of your case presentation including: video and audio clips, demonstratives, exhibits, synchronized deposition and case law.  The advantages that an EBrief offers your client should not be overlooked as part of your litigation strategy.  I have provided extensive information on other blog posts about this issue.  Remember, judges learn the same way we all do, visually!

 

 

Hyperlinked Electronic Briefs – An Effective Legal Strategy

While most people understand the mechanics of what a hyperlink does from their familiarity with the Internet (it creates an instant way to access referenced or related information), their use in the legal market to submit documents to the court as hyperlinked EBriefs is still a growth industry.  As an EBrief proponent and provider, questions that I am asked by prospective clients fall into two major categories.  The first issue that everyone is concerned about is cost, and the second issue is usually related to utility and acceptance by the courts. 

After being involved with EBrief creation for over 12 years, I believe that the proper issue to focus on is the advantage that an EBrief offers a client.  Once the advantages are understood, the question of cost usually moves way down the list of considerations. While I recognize that cost is always a factor, winning a case is far more important.  The key issue surrounding cost is that the cost continues to drop as the technology and service improves.   The cost to create a hyperlinked EBrief today is less than 40% of what it was five years ago and turn around time is generally less than two-three days (and often overnight), so these factors are becoming less important in the final decision making.  Additionally, EBriefs are now accepted in virtually all Federal courts and dozens of state courts, with the formal acceptance level increasing every month.
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Therefore, I believe that the most important focus should be, “What is the advantage of submitting a brief to the court?”  The underlying question is really, “how can an EBrief help me win my argument?”  With this as the basic premise, understanding some of the advantages of using EBrief technology will be explored in this posting.

Advantages of Implementing a Hyperlinked EBrief Strategy

1. Information is accessible instantly – Perhaps the most obvious advantage is that hyperlinks present information in the manner that we have all become accustomed to receiving it, instantaneously.  In a hyperlinked format, every supplemental document and point of law can be immediately accessed by the reader, without any delay in looking up the relevant material in a case book or digging though a box of exhibits.  Questions of interpretation are addressed while the question is still fresh in someone’s mind.  Especially when the record is voluminous, adding hyperlinks to citations and exhibits enables the judge to access the material quickly, without becoming distracted form the argument while looking for the reference in a hardcopy format.  Hyperlinks can focus the judge’s attention where you want it, on your argument, eliminating external distractions.

2. Presentation of difficult to present evidentiary material – The limitations of a paper submission make it difficult to present non-traditional forms of evidence, such as videotaped depositions. Traditionally, deposition testimony is presented to the court as a hardcopy text file translation of the testimony, to be read by the court.  The widespread availability of videotaped depositions allows the court to view the testimony in its entirety, with all the inflections and body language that accompany it.  Video can present a different impression to the judge that may impact their understanding of the testimony.  A cautionary note is important here.  Make sure that the evidence you are presenting strengthens your evidentiary or legal point and is not just an appeal to the courts emotions.  Presenting to the judge is different than presenting to the jury.

3. Planning for videotaped depositions - Given the advantage of presenting multimedia within your brief, it is important that you develop a legal strategy to support that plan.  Since not all litigation matters can support the extra cost of videotaping all depositions, it is important to plan ahead.  The identification of witnesses whose demeanor and conduct would be beneficial to your case should trigger the decision to have that witness’s deposition be videotaped for potential use in the hyperlinked EBrief.  This preserves your ability to use the material as you move forward.

4. Inclusion of demonstrative evidence – Certain types of cases and expert testimony benefit greatly from the creation of animated simulations or reconstructions to simplify complex problems.  This might include things such as accident recreations, patent modeling or even the presentation of evidence using charts, PowerPoint presentations or other graphical representations.  These are effectively used during the trial portion of the case and can be just as effectively integrated into the briefing portion by utilizing the advantages of an EBrief presentation, making them instantly available for review and re-review.  The power of visual evidence that accompanies the written word is far superior to the written word on its own.

5. Changing the written presentation of your brief - I have spoken with a number of practitioners who say that they have changed their style of writing to better accommodate the advantages of the EBrief presentation model.  Since EBriefs allow you to more easily focus the attention of the judge on specific pieces of evidence, you can more easily change your written presentation to emphasize certain material repeatedly. Creatively presenting your key piece(s) of evidence in several different scenarios improves the chances that the judge will access at least one of them and consider the direct evidence that you feel is most important for your case. 

 

How to Improve your Chances during a Markman Hearing using EBrief Presentation Technology

During your Markman hearing in U.S. District Court, a judge rules on the interpretation of patent claims as a matter of law, essentially interpreting the appropriate meanings of relevant key words used in a patent claim.  This determination of language determines whether a case will move forward to trial.  It is imperative to convince the judge of your case using all possible methodologies.  There are two areas of evidence in a Markman hearing: intrinsic and extrinsic.  Intrinsic evidence consists of the voluminous patent documentation, the claims, written description and any prosecution history of the patent in question.  Extrinsic evidence is defined as "all evidence external to the patent and prosecution history, including inventor testimony, dictionaries, and learned treaties."

The Federal Circuit has indicated that trial courts may consider extrinsic evidence, including expert testimony, for education and background, even where the intrinsic evidence is sufficient to construe the claims. If the trial court is not inclined to hear testimony at the Markman stage, however, then stressing its educational value will likely not be enough.

Rather, the most likely way to convince the court that it needs to hear expert testimony is to show the existence of technical terms in the claims that are not defined in the patent specification. Faced with a choice between competing definitions of technical terms, where the answers are not readily supplied by the intrinsic evidence, the court may be willing to turn to outside help. Of course, this may also require convincing the court that seemingly ordinary claim terms in fact have a technical meaning in the particular field.

How can EBriefs assist throughout this entire process?
By providing immediate, hyperlinked access to the complex material that you have prepared for the court. Providing the court with an electronically linked set of documents and demonstratives that is fully text searchable assures you that the Judge can re-access the key information you have emphasized during the hearing. It provides the best chance for a favorable outcome.  A hyperlinked presentation improves your presentation to the court by highlighting and making accessible:

1. Voluminous intrinsic evidence which allows the judge to access the contents of the patent wrapper, including all patent documentation, claims and prosecution history of the patent in context.
2. Detailed extrinsic evidence testimony that you provided to support the written intrinsic evidence which improves the veracity of your argument.
3. The extensive tutorials you prepared for the court.
4. All support materials which are accessible with one mouse click
5. All visual evidence which is more powerful than the written word alone
6. The final product which can be distributed to clients, press, experts, etc. and
7. Perhaps most importantly, Judges (and clerks) love the ease and convenience!

    Proof of Concept
The U.S. Department of Labor studied how people retain information depending on the method presented to them.  The studies suggest that three days after an event, people retain 10% of what they heard from an oral presentation, 35% from a visual presentation, and 65% from a visual and oral presentation. By using an EBrief not only do you combine written, oral and visual presentations, but you have the added advantage of having this in front of the Judge to review repetitively.

USDOL Study  "Presenting Effective Presentations with Visual Aids" May 1996 OSHA Occupational Safety & Health Administration U.S. Department of Labor

 

The Top 10 Considerations in Choosing an EBrief Vendor

Not all EBrief vendors are created equal.  As I mentioned in some earlier Blog Posts, hyperlinking is not particularly difficult.  As a result, many people advertise that they can create a hyperlinked EBrief that will meet your expectations.  However, a well executed EBrief goes far beyond simple hyperlinks; and must be created by someone with extensive legal knowledge, familiarity with court rules and the ability to create a navigation system that presents your written information in the most positive manner.  The ten considerations listed here should help you qualify a vendor before you turn over your work product on a limited time schedule.

1. Experience
    a. Select a vendor with a proven track record in creating electronic briefs.  EBrief creation requires staff expertise, and a seasoned provider will deliver higher quality and make suggestions to improve your submission.  
    b. Choose a vendor that understands court deadlines and will deliver, no matter what roadblocks may be encountered.  
    c. Some vendors provide template motions for permission to file an EBrief, easing your workload.
    d. Look for a vendor that has a Project Plan which includes a review of all the important issues before a contract is signed. 
    e. Make sure the vendor has software solutions to process all file types to be included in a project, including video and audio clips.

2. Format and Rules Compliance
    a. When comparing vendors and prices, make sure that the same type of end product is available from both vendors. There is no “industry standard” so delivery comparisons may be subjective.
    b. Make sure the end product complies with all court requirements so that your EBrief will be accepted by the court.

3. Pricing & Turnaround Time
    a. Pricing can vary between vendors up to 300% for the same project.  Understand that low prices do not preclude quality services, but neither do they guarantee good service.  Price should only be one factor in your decision about selecting a vendor.  .
    b. Some vendors can complete your project within 2-3 days without expedited charges, others take over a week.  The most experienced vendors have invested heavily in software and personnel training to improve efficiency, streamline processes and reduce pricing.

4. Visual Representation 
    a. Not all electronic brief products are created equal.  Make sure the visual display format is pleasing to the eye, easy to read and that document navigation is intuitive.
    b. Hyperlinks should be easy to see and color coded to indicate what type of document the viewer will be examining.  Color coding of links should not interfere with document readability. (hyperlinks which are indicated by underlines or boxes tend to negatively impact the reader)
    c. Discuss whether your vendor will highlight pinpoint citations in external supplemental documents as part of regular pricing for improved viewing.

5. Navigation Features
    a. Electronic briefs should be designed to operate like a Web browser.  Most people are familiar with this format before they even open the brief, reducing questions on operation.
    b. The brief should include a “Backtrack” or “Previous View” Bookmark that is document centric v. page centric.  Navigation should mimic how a user operates in the paper world.  When a viewer has completed examining a 20-page exhibit, ‘Previous View’ should return them directly to the original source document where they clicked on the hyperlink, so they can continue reading.
 
6. Compatibility
    a. The electronic brief should be entirely self-executing and self-contained.  The CD should contain all the files and software needed to run the program without requiring the installation of any software on the user’s PC, except for a free PDF ‘Viewer’.

7. Ease of Adoption and Use
    a. The end user should not have to contact the IT department in order to use the product.  It should auto start when the user inserts the CD-ROM in their computer and default to the first page of the brief, along with a Bookmark listing of key documents.
    b. For the uninitiated, the product should include an online User’s Guide to provide instructions on how to access and navigate the EBrief.

8. Capacity and Delivery
    a. The product should have the capacity to include all necessary files on a single CD or DVD.  In uncompressed format, most CD’s will hold 8,000 – 12,000 pages of images.  Compression software allows some vendors to place more than 60,000 pages of images on a single CD-ROM.
    b. Make sure your vendor has the expertise to supply you with a finished product using the most efficient delivery system that matches your project needs.  These include: CD, Zip files, FTP upload or other large file handling system to assure timely delivery of the finished product.

9. Customized Bookmark References
    a. The best electronic brief service companies allow the user the greatest presentation options. Customization can be a worthwhile investment to further improve the presentation of your argument.  Ask if there are options beyond the “standard” service.
    b. Adding a complete Index of Exhibits in the Bookmark section will allow the user easy access to all the supplemental documents without having ot search through the body of the brief.
 
10. Quality Control
    a. Select a vendor who has strong quality control procedures.  A strong QC process should check that every link is active and connected to the correct support document, including links in the TOA, TOC and in body of brief(s).
    b. Your vendor should supply you with a Draft project to review along with an outstanding list of issues discovered during the linking process (Missing documents, non-existent citations, etc.).  You don’t want your vendor to make important judgment calls without your input.

Conclusion
In closing, representation is all about advocacy.  When technology can improve advocacy, attorneys should embrace it and insist that it become part of the way their firm does business.  Hyperlinked electronic briefs can and do improve your final presentation to the Court for review.

The Benefits of Using an Outside EBrief Vendor

Once you have made the decision to create an EBrief for a litigation, the question of whether to perform the work in house or hire an outside vendor must be addressed.  The decision to contract with an outside vendor to create an EBrief should be the result of analyzing the following three considerations: financial, resource allocation and expertise.

To be brutally honest, anyone can create a hyperlink.  In fact, hyperlink technology has been around for over 15 years, although it is newer in the legal market.  However, a well designed EBrief is far more than a document with hyperlinks added to it.  Creating an EBrief that is logically organized, contains a complete index of Bookmarks, is in compliance with all court rules and has full navigation capabilities, allowing the user to move between documents effortlessly, is a learned skill.  To be noticed by the court and function the way that people read, EBriefs must be document centric vs. page centric, which is not the way that existing software options have been designed.  These shortcomings must be overcome by experience.

Engaging an outside vendor to create an EBrief allows you to focus your attention and the attention of your firm on trial preparation, legal research and crafting the legal argument, which is what your client is paying for.  Assigning internal staff to engage in a complicated production is not a good use of firm resources.  Let an experienced EBrief vendor supply the expertise for this technological, specialized function.  The best vendors are those with extensive legal experience; so that they are fully versed in legal procedures, court rules, necessary motions, and most importantly, have been involved in filing hundreds of EBriefs.  They can offer advice regarding optimal presentation and design options for your EBrief.  In addition, a vendor that creates EBriefs for a living should have an internal quality control system to assure that a project is accurate and perhaps most importantly, can be provided on a very short time schedule for a reasonable price.

Presentation features that outside vendors should offer

• Delivery in PDF, the standard format accepted by all Courts, requiring only the free Adobe Reader to access all material
• Internal hyperlinks from the Table of Contents and Table of Authorities in each brief improves user access to key document headings
• External hyperlinks to other Briefs, Exhibits, Case Citations, Appendices, Transcripts and Audio/Video clips link legal argument to underlying proof in context
• Bookmark Index  that organizes key documents into accessible electronic lists, allowing the user to easily navigate between documents
• Full-text searching of all documents and exhibits through the use of OCR
• Pinpoint references are highlighted in source text for easy identification of quotations, key passages or direct section references

In summary, why should outside vendors be used to create EBriefs?

• It allows you to focus on the content of the case and the drafting of the argument, not the mechanics of the filing,
• They provide invaluable expertise regarding presentation options
• Outside vendors have processes in place to assure compliance with existing court rules
• Turn around time – an experienced vendor can turn around a high quality project in less than 48 hours.
• They have software solutions in place to process all potential file types (video, audio, web pages, scanned images, flash)
 
All EBrief vendors are not created equal.  Make sure you select one with years of experience to assure your clients of the best service.