eBriefs – Novelty or Necessity?

One response I often hear from attorneys regarding why they don’t submit eBriefs is, “My brief doesn’t warrant an eBrief”. I used to just accept this at face value, but then I began asking myself, “What kind of brief does warrant an eBrief?” eBriefs have been around for quite some time, and in their infancy, like many new technologies, they were considered a novelty. However, now that courts are becoming more tech savvy and younger clerks are coming in, not to mention the pure volume of material being submitted to an already overloaded system, the use of technology in briefing is starting to become more of a necessity.

Appellate Briefs
Submitting an eBrief is practically a no-brainer for appellate briefs. The record is usually already in place and the issues are really narrowed down. Most Federal appellate courts are aware of the eBrief technology and accept it with no issues. If you are uncertain whether your court accepts eBriefs, the information is typically easily found in the rules on each court’s website.

Post-Hearing Briefs
Post-hearing briefs also lend themselves to eBriefs, as they usually contain many cites to the hearing transcript as well as the exhibits used in the hearing. Having all of those cites hyperlinked directly to the page of the transcript along with links to the exhibits makes the triers-of-facts’ lives so much easier. The eBrief eliminates the need to browse through a disc of PDF files searching for an exhibit or page through a transcript that in some cases may be 1000’s of pages long just to find the citation.

Trial Briefing
Last but not least, eBriefs are great for Motions to Dismiss, Motions for Summary Judgment, Class Certification and Claim Construction. The judge can easily navigate the argument and will have all of the motions in one package for easy review. A common misnomer is that a brief needs to be over a certain number of pages for it to be worthwhile.

In my numerous years of experience, the average page length of a hyperlinked averaged brief is between 35-100 pages. However, I have created eBriefs for motions that were hundreds of pages or sometimes only 5 pages long because the attorney recognized the value that creating links to key evidence could bring to his/her filing. At the end of the day, creating an eBrief for any key submission, regardless of page length, is worth the time and cost involved.