The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Did we really think through this whole e-filing thing?

Unlike the federal system, Texas has no uniform set of rules concerning how to handle sensitive information in e-filed documents. And you no longer have to go down to the clerk's office and rifle through dusty boxes to peak into someone's life.

Perhaps that's why it took me all of 10 minutes of searching online to find information that I could have used to commit identity theft. 

Yeah, 10 minutes. Some poor client's lawyer had included full name, date of birth, insurance number, etc. in a sloppy summary judgment exhibit.

Before you e-file something about your client, you should think about it as if you are publishing it on the internet.  Because you are.

And once it's out there that private information can travel at the speed of light. Here's the illustration I am using in my upcoming paper and presentation on the topic at the 21st Annual Conference On State and Federal Appeals: 

The speed at which information travels in the age of electronic access could not have been conceived by John Stuart Mill, Jeremy Bentham or even the drafters of Rule 76a. Just take one example from recent events. There was no more closely guarded secret than the helicopter attack that targeted Osama Bin Laden. But a Pakistani IT consultant named Sohaib Athar with the Twitter handle ReallyVirtual unwittingly “live-tweeted” the helicopter assault when he heard the explosions and gunfire. Donald Rumsfeld’s former Chief of Staff “tweeted” the fact of Bin Laden’s death before it was announced by President Obama. The official announcement came at 10:35 p.m. and the location of Bin Laden’s lair was on Google Maps less than an hour later.

Now, imagine your client's medical records or insurance group number or Social Security number flashing around the world, even if a little slower than that.

So what's a lawyer to do? And are the courts in any position to give us some protection if we stub our toes? Keep watching this space for the full paper, or come see Appellate Nerds Unplugged at the UT Conference on State and Federal Appeals, June 2nd and 3rd at the Four Seasons Hotel in Austin.

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Hooray! Texas has e-filing!

In the Supreme Court.

In many of the intermediate appellate courts.

Even in many of the big city trial courts!

Nirvana has been reached. That's good right?

No, that's bad.

How?

Texas also has the most presumptively open regime of court records in the country. With a click of the mouse any Tom, Dick or Hacker can access the dirty laundry or private information that makes its way into the court records--either because it needs to be there to adjudicate the dispute or simply because of carelessness.

Uh, oh. That's bad, right?

No. That's good. We want our courts to be open. Star Chambers are not the hallmarks of free societies.

So it's complicated, then?

Yeah, you could say that. Here's the illustration I borrowed for a recent paper on the topic:

Before you become warm and fuzzy with abstract notions of democratic theory, I challenge you to get really practical:

• Write down five entities that you owe money to, and write down how much you owe them. Don’t forget your mobile phone carrier and your electricity provider.
• While you are at it, write down your full name, every name you have been known under, and your Social Security number.
• How about your monthly mortgage payments, your cable bill, your insurance premiums?
• Now the names and ages of your minor children.
• Now publish all the information on the internet.

No? Why not? This information ought not be public? But that’s what it feels like to file for bankruptcy. 

This is the problem. Are there any solutions? Should the rules be changed? What should lawyers be doing to protect their clients and themselves?

Well, that's the topic of my yearly rant at the 21st Annual Conference on State and Federal Appeals to be held June 2nd and 3rd at the Four Seasons Hotel in Austin. Until then, I'll be sharing little tidbits of the topic and I hope to see some of the blog lurkers at the conference.

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Thanks to Robert Dubose, who has been kind enough to share his tips on writing for that new, rewired animal, the screen reader. He ought to know.

He wrote the book on the subject.

We learned about using headings to communicate your argument.

We learned about giving readers that mental ease they need by chunking complex information together and providing regular breaks in the page.

Now, the last installment, which is less aesthetically oriented. Interestingly, it comes back to good compositional technique.

After the jump learn:

• what you need to leave out of your brief if you want to keep the reader on task; and
• how you might need to change the way you set out a paragraph for readers who are skimming the first sentences.

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I am now going to astound and amaze you with some of the best English language writing ever:

If we are mark'd to die, we are enow To do our country loss; and if to live, The fewer men, the greater share of honour. God's will! I pray thee, wish not one man more. By Jove, I am not covetous for gold,Nor care I who doth feed upon my cost; It yearns me not if men my garments wear;Such outward things dwell not in my desires. But if it be a sin to covet honour, I am the most offending soul alive. No, faith, my coz, wish not a man from England. God's peace! I would not lose so great an honour As one man more methinks would share from me For the best hope I have. O, do not wish one more! Rather proclaim it, Westmoreland, through my host, That he which hath no stomach to this fight, Let him depart; his passport shall be made, And crowns for convoy put into his purse; We would not die in that man's company That fears his fellowship to die with us.This day is call'd the feast of Crispian.He that outlives this day, and comes safe home Will stand a tip-toe when this day is nam'd, And rouse him at the name of Crispian.He that shall live this day, and see old age, Will yearly on the vigil feast his neighbours,And say 'To-morrow is Saint Crispian.'Then will he strip his sleeve and show his scars, And say 'These wounds I had on Crispian's day.' Old men forget; yet all shall be forgot, But he'll remember, with advantages, What feats he did that day. Then shall our names, Familiar in his mouth as household words- Harry the King, Bedford and Exeter, Warwick and Talbot, Salisbury and Gloucester- Be in their flowing cups freshly rememb'red.This story shall the good man teach his son; And Crispin Crispian shall ne'er go by, From this day to the ending of the world, But we in it shall be remembered- We few, we happy few, we band of brothers;For he to-day that sheds his blood with me Shall be my brother; be he ne'er so vile,This day shall gentle his condition; And gentlemen in England now-a-bed Shall think themselves accurs'd they were not here, And hold their manhoods cheap whiles any speaks That fought with us upon Saint Crispin's day.

Isn't that GREAT??!!! I especially love that "band of brothers" part in the middle.

What? Had a little trouble with it, did you? Just a few lines from a great speech and you mostly skipped over it, huh?

And yet how many times do we inflict a block quote or an unbroken page of our own prose (not as good as the St. Crispin's day speech) on some poor, hapless judge? 

In the first post on writing for screen readers, Robert Dubose, author of the book, Legal Writing for the Rewired Brain, gave us counsel about the importance of headings. Today, two more usability tools to give the courts a break, i.e., The pause that refreshes.

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Don't click this link.

(I told you not to. That song is lodged in my head like a blood clot now.)

And don't shuffle your itunes player.

And don't check your Netflix cue.

And don't think about the Facebook updates.

I'm trying to keep your attention here.

According to Matthew Butterick, my most valuable resource as a writer is reader attention. And the problem is you're a screen reader.

You've got lots of options other than reading this blog--as wondrously entertaining as it is.

And the judges reading your e-brief are increasingly screen readers too. They have a lot of options more engaging than reading your page upon page of unbroken text on the subtleties of the Noerr-Pennington Doctrine or the Dormant Commerce Clause.

Are these screen readers any different? If so, how do you engage them? How do you keep them? How do you write for them? As with typography, I went straight to the expert.

Because that's how we roll here at the Appellate Record.

My friend, Robert Dubose, has written a paper and spoken on the topic before. Now, he is the author of the book, Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World.

After the jump, we'll start to plumb the depths of his rewired brain.

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