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Friday, January 04, 2013

Ind. Courts - Some reactions from attorneys on the Court's 3-phase pilot project

The ILB yesterday asked for attorney comments on the Court's 3-phrase pilot project to speed-up and modernize the appellate process. Here are some responses.

From an appellate defense attorney:

Regarding the audio/visual recording being the official record as opposed to a paper transcript:

This would impact my practice in a number of positive ways. Many appellate attorneys, including myself, do not live or work in the counties in which they handle appeals. So getting the paper transcript is often difficult. It has been my experience that one of three things happens.

First, I am sent the original transcript through the mail (which is expensive), and then I file it with the Court of Appeals when I file my brief. I have recently been told that the Appellate Clerk's office disfavors attorneys filing the original transcript, so many trial court clerks are now refusing to send me the original transcript.

Second, the trial court clerk mails the original transcript to the Appellate Clerk, and then I travel to the Appellate Clerk's office to pick it up. This is very problematic because the entire process can take 10, 15, sometimes even 20 days. All that time reduces the amount of my 30-day window I have to draft the brief.

Third, the court reporter sends me an electronic copy of the transcript. I prefer this option best because I then have an electronic copy of the transcript that I can highlight, attach electronic sticky notes to, etc., and that I can reference later when drafting my reply brief. But the major downside is that I cannot view the exhibits.

A visual recording of the proceedings would really improve the efficiency of my practice because it would eliminate the time I lose in obtaining either the original transcript or a copy, and it would provide me with an electronic copy that I can reference later. Also, if the exhibits are viewable on the recording, I can see those easily without having to obtain the original transcript.

It would also make our appellate courts even more efficient in administering justice because it would not take 90 days for preparation of the paper transcript. Recently I asked a court reporter to send me an audio recording of a hearing in one of my cases. I received the audio file by email in less than a day.

As for the third phase of the pilot project, which involves having the parties submit documents electronically, this also would greatly improve the efficiency of my practice. It is expensive to copy and bind the required number of briefs (usually 13-14) in each case.

Also, for the reasons set forth above, a paper transcript is cumbersome. After I have prepared my initial brief, I never know whether I will need to review the transcript again to prepare my reply brief. So with a paper transcript, I must either create my own electronic copy (by scanning each page), make my own paper copy, or request an electronic copy from the court reporter (which I don't always get).

One final thing, Marcia. When the Court is considering all of this, I think it is important for them to also consider the electronic form they wish for these documents to be sent in. I have court reporters all the time send me transcripts generated by WordPerfect. If I open them in Word, the page numbers are almost always wrong, which makes the transcript unusable to me. So I have had to purchase a copy of WordPerfect. It would seem this could be easily remedied by requiring court reporters and the parties to submit the documents in PDF format, which can be opened on any computer or mobile device.

ILB: I certainly second the Word vs. WordPerfect point. Re the PDFs, I think it is also important that the documents submitted not be scanned documents which can't be digitally manipulated. Even the Supreme Court still does this, as with its two orders on use of exhibits in oral arguments filed this week.

Another Indiana attorney writes:

I don't have a personal story, but can share one told by [deleted] when he spoke to the Fulton County Bar Association last August. He had a trial in New Jersey as I recall, a several week murder trial, and daily they got the video DVD of the days proceedings about 20 minutes after court adjourned. That was the record for appeals, and for counsel. He claimed he loved it.
This from an Indianapolis attorney who does many criminal appeals:
I’m both excited and concerned about the pilot projects. The current deadline of ninety days to prepare a transcript is ridiculously long, especially when many transcripts are quite short. In so-called expedited appeals under Appellate Rule 21(A), a ruling from the Court of Appeals within six months of the filing of the notice of appeal is nearly impossible if three months is spent preparing a transcript. Anything that shortens that ninety-day period (with the availability of extensions for lengthy trials, of course) is a big step in the right direction.

The availability of video transcripts from courtrooms across the state would overall be a positive development. Trial lawyers would be able to incorporate testimony excerpts into closing argument or perhaps even cross-examination. Appellate lawyer would be able to secure the record within minutes, which would ideal especially when seeking an emergency stay or appealing something especially time-sensitive, like a contempt finding or denial of bail. Finally, I imagine the Judicial Qualifications Commission would appreciate the opportunity to review the demeanor of judges on the bench in evaluating complaints.

My concern, though, is the significant increase of time it takes to review a video transcript versus a paper transcript. I was recently assigned one of the Marion County Criminal 6 video transcripts. I could read a transcript of a two and a half-day trial in a few hours. Watching the video will take two and a half days, and citing to the record is more difficult. If I want to quote something, I need to watch it several times to come up with the precise verbatim quotation, which I could have far more easily copied and pasted from a conventional transcript.

Time usually means money. A video transcript may save the cost of preparing a transcript, but it considerably increases the amount of lawyer time involved. If an appellate public defender making only $60/hour spends an extra fifteen hours dealing with the transcript, the county will pay $900 in additional lawyer time, which may well be less than the cost of a traditional transcript. But the costs continue throughout the appeal. (Some counties pay a flat rate per case to appellate lawyers, which would probably need to be adjusted upward.) The Attorney General’s Office would not be able to process the same high volume of appeals with the same number of lawyers if required to watch a video transcript of every case. I suspect the Court of Appeals might also find it difficult to keep pace without additional staff if every transcript was a video. For a company or individual pursuing a civil appeal, the cost will be considerably higher because lawyer time is billed at a much higher rate.

Some sort of change in this realm is inevitable and even desirable, and the three pilot projects should provide plenty of feedback as those changes are discussed in the future.

ILB: Although this is a pilot project, I have some concerns about public access to the record (and court imposed limitations on use) now, and in the future.

Additional comments welcome, now or as the projects progress.

Posted by Marcia Oddi on January 4, 2013 11:20 AM
Posted to Indiana Courts