On Appeal: A Primer on E-Filing in the State Appellate Courts

This article originally appeared in Volume 25, Issue 2 of the Practitioner, the quarterly magazine published by the Solo & Small Firm Section of the California Lawyers’ Association.

On Appeal: A Primer on E-Filing in the State Appellate Courts

By Jeffrey N. Williams[1]

It seems hard to believe, but the concept of electronic filing in the California state courts is nearing its twentieth anniversary. (Senate Bill 367, which added Code of Civil Procedure section 1010.6 to the statutory rolls, was passed all the way back in 1999!) E-filing was promised to bring the legal profession into the information age, streamline the filing process, and deliver cost savings to clients by cutting out cumbersome printing and delivery logistics associated with paper filing. 

But the roll-out left something to be desired, and even in 2019 many large law firms have opted to hire dedicated filing staff to stay up-to-speed on the patchwork of e-filing systems and practices that have been implemented throughout the superior courts. That is a luxury that a solo or small-firm litigation practice is unlikely to have.

The alternative, of course, is to pay an attorney service to handle it all. Indeed, some of the superior courts have even cemented the role of the attorney service by requiring all e-filings to be routed through certified third-party providers before reaching the court. But how many clients like seeing line items for filing expenses on their invoices? Isn’t that what e-filing was supposed to eliminate in the first place?

Fortunately, despite the difficulties that seem to persist in the superior courts, the appellate courts have finally all gotten on the same page and implemented a uniform e-filing system called TrueFiling. TrueFiling is relatively user-friendly and can both file and serve your appellate pleadings in a matter of minutes, all without the use of an attorney service or even an assistant, if one is so inclined. Following its adoption by the Second District effective October 30, 2017, electronic submission through TrueFiling is now mandatory in all six districts of the Court of Appeal and for most Supreme Court filings. (The most significant exception to mandatory e-filing in the Supreme Court concerns merits briefs and other documents filed after the Court grants a petition for review. Those documents actually cannot be e-filed under the current rules, for reasons that remain a bit unclear. See Supreme Court Rules Regarding Electronic Filing, Rules 2-3 (last amended May 1, 2018).)

So what do we need to know before firing off that next appellate brief with lightning-quick speed? Given the caveat that court rules are always subject to change and are undoubtedly the best reference for current, detailed information, here is a brief primer on some best practices to avoid that dreaded ‘rejection’ e-mail from the clerk.

The TrueFiling System

Although a few minutes poking around on the website after registration is probably the best way to answer any questions about the process, here’s how to get started with TrueFiling. First, either locate a pending appeal by using the “Case Search” function, or if this is the first filing in an original proceeding or a Supreme Court petition for review, use the “Initiate Case” function to open a new matter directly. The tricky part about this, however, is that a court must be selected as a “favorite” before it will display in the menu here. Select a court either by using the “Court Lookup” button next to the drop-down menu, or by going directly to the “favorites” page using the menu bar to the left.

Second, make sure that all case participants—including any assistants that might be filing or processing documents—are registered as contacts once you have reached the “Case Detail” page. TrueFiling will e-serve a filing on all case contacts for an additional fee, so it is important to have the necessary recipients in place before you or your opponent takes advantage of this feature. While none of the appellate courts currently require e-service, it is immensely helpful, and not just for the environment (although the trees will thank you). Indeed, one of the best features of TrueFiling is that it automatically generates a proof of service for all e-served documents, certifying that the document was sent to an attorney’s registered e-mail address. This makes it a bit more difficult for an opponent to claim that your filing was lost in the mail.

Third, start your filing by selecting “Create New Bundle.” A “bundle” can be a single document or a group of documents; for example, a brief and an appendix, or a motion with an accompanying request for judicial notice and proposed order(s). Think of it as the envelope in which your paper filing would otherwise be sent to the court. TrueFiling automatically applies the same properties to each document in a bundle, such as the filing attorney and the service recipients. Once all the documents in a bundle have been uploaded, they can all be submitted together. From there, TrueFiling will deliver the bundle to the court and to any e-service recipients chosen. An important tip is to be sure to select the correct event associated with the document being filed, particularly if there is a fee due in connection with the filing (for example, the party’s first brief in a case). If TrueFiling fails to charge the necessary filing fee because the correct event was not selected, the document may make it through TrueFiling, but will be rejected once it gets to the court.

Fourth and finally, after submitting, wait for an e-mail from TrueFiling letting you know that the bundle has been received by the court and is awaiting review by a clerk. An additional e-mail will follow—sometimes within minutes, but potentially in the next day or two—to state whether the clerk has accepted or rejected the filing. If accepted, you’re all finished. If rejected, the clerk will let you know what deficiencies need to be corrected before the document(s) can be re-submitted. Keep in mind that while you only have to pay a filing fee to the court once, convenience and/or service fees to TrueFiling must be paid for each submission, so it is important to ensure that the correct event is selected and that the documents themselves comply with all relevant court rules.

Brief and Motion Formatting

Did I get your attention with that last bit about the fees? Yes, unfortunately, one of the pitfalls of the TrueFiling system is that non-compliance with court rules can not only force you to go through the whole process again, but to pay again for the pleasure of doing so. It would be impossible to cover all of the courts’ individual rules in detail here, but here are some of the most common errors that can cause a filing to be rejected.

Text-searchable PDF formatting. This is, by far, both the easiest rule to follow as well as the fastest way to elicit a rejection e-mail. All districts of the Court of Appeal as well as the Supreme Court require that an e-filed brief or motion be submitted as a text-searchable PDF. What this means is that the brief must either be converted to PDF directly from your word processor or scanned using Optical Character Recognition (“OCR”) technology. 

Given that OCR is still a bit unreliable and printing a document only so you can scan it back to your computer seems redundant, the former method comes highly recommended. In most recent versions of Microsoft Word, simply select “PDF” in the drop-down menu labeled “Save as type” when saving the brief to your hard drive. Then, to confirm that the document you’ve created is text-searchable before filing, open it in your PDF viewer and search for a word or phrase using the “Find” (Ctrl-F or Command-F) function. If your PDF viewer is able to navigate to the word or phrase, the document is text-searchable. Just make sure that you know the word or phrase is actually in the document before driving yourself crazy doing this!

Electronic bookmarks. All districts of the Court of Appeal and the Supreme Court also require that e-filed briefs, motions, and appendices contain electronic bookmarks. Electronic bookmarks are text links that appear in the bookmarks panel of an electronic document (they are not the same as hyperlinks, which are the focus of the next topic). While bookmarks can be created after a document is otherwise finished using a PDF editor like Adobe Acrobat, the easiest way to create them is directly in your word processor. 

In Microsoft Word, use the “Styles” toolbar to assign the “Heading 1” style to each of the headings in your brief. “Heading 2,” “Heading 3” and so on can be used for subheadings. Be sure to tag not only the headings and subheadings in the body of a brief, but any other navigable component of the document such as a declaration, certificate of word count, certificate of interested parties, or proof of service. If the filing also includes tabs, exhibits, or attachments—which will frequently be the case when creating an appendix—those each have to be separately bookmarked as well.

Once complete, a version of what should essentially look like a table of contents will form in the navigation pane on the left side of your screen (in fact, using the “Heading” styles in this manner is also the easiest way to create your table of contents). The bookmarks are now in the Word document, but one more step is needed to make sure they also end up in the PDF for e-filing. Following the same directions as laid out above for saving a text-searchable PDF, and after selecting “PDF” in the drop-down menu labeled “Save as type,” an “Options” button should appear below. Select that button and make sure that the “Create bookmarks using . . . Headings” boxes are checked before proceeding to save the file. As before, confirm that the document you have created contains the bookmarks before filing by opening it in your PDF viewer.

Hyperlinks. Hyperlinks are links in the actual body of a document that allow the reader to quickly navigate to an outside document. They are most frequently used to link to case or record citations. Unlike electronic bookmarks, hyperlinks are not currently required in any of the appellate courts. Nevertheless, they are still highly recommended. For one, the courts expressly encourage the use of hyperlinks because they save time. For another, there is nothing that makes an argument quite as persuasive as the ability to see—in one short click—the document in the record or the language from a case that directly supports your position. 

Creating hyperlinks to case citations is simple. First, paste the case citation into Westlaw or Lexis. Be sure to include the pincite so that you are taken to the correct page(s) of the opinion or ruling. Then, look up to the URL (website address) at the top of your web browser. At the end of the URL, there should be a section that begins with a pound sign (#); this is the portion that causes a web browser to navigate directly to the pincited page. Copy the entire URL before opening your word processor back up. (Do not use the built-in link builder from Westlaw, as it will not include the aforementioned portion of the URL and therefore will not direct the reader to the pincited page.) Highlight the case citation and insert the hyperlink. In Microsoft Word, this is done using the “Insert . . . Hyperlink” function in the menu bar, or simply right-clicking the highlighted text and selecting the “Hyperlink” function there.

Creating hyperlinks to specific documents in the appellate record or an appendix is a bit more difficult. It can also be unreliable, depending on how the court downloads and views the brief and record. But for those that care to go the extra mile, first be sure that your brief or motion is saved in the same folder on your hard drive as the record or appendix. From there, using Microsoft Word, select the “Hyperlink” function as discussed above and check the boxes for “Existing File or Web Page” and “Current Folder” along with the target document. 

At this point, it would be great to just link to one of the electronic bookmarks we already created in the target document, right? No such luck. Microsoft Word, at least, does not allow linking to a bookmark within a PDF. The only options are to link to a “Named Destination”—which requires the use of a separate PDF editor such as Adobe Acrobat—or to link to a specific page of the document. To link to a specific page, select the target document as discussed above, then manually type at the end of the file name “#page=” and the number of the page you wish to link to. Unfortunately, even after all of that, the resulting link will only navigate to the correct page if opened in a web browser, not in a PDF viewer. But enterprising court staff able to view the citation correctly will surely thank you for your hard work.

Consecutive pagination. One problem posed by the practice of linking or citing to certain pages within an e-filed document, of course, is that what a web browser or PDF viewer considers to be “page 1” may not be what the writer considers to be “page 1.” In fact, it is relatively commonplace for lawyers to use different pagination for different parts of a brief. The caption page may have no page number at all, and the table of contents and table of authorities may be paginated by roman numerals, pushing “page 1” to the body of the brief. 

To combat this, all six districts of the Court of Appeal and Supreme Court require that e-filed documents be consecutively paginated using Arabic numerals (1, 2, 3, and so on). The page numbers listed in tables and indices must match both the numbers at the bottom of each page as well as the page counter within the web browser or PDF viewer. This allows the court and the parties to accurately locate the cited pages and ensures that page citations are consistent. The courts do generally allow parties to “suppress” the number on the caption page in the sense that it need not expressly appear there, but the caption page should still be considered “page 1” with all following pages numbered consecutively.

Service of E-filed Documents and Copies

Lastly, the advent of e-filing has eliminated a substantial amount of the previous paper-filing requirements, which ranged from simple (making sure the cover of your appeal brief was in the correct color) to fairly onerous (having to provide up to thirteen additional copies of a petition upon filing!). All districts of the Court of Appeal have promulgated local rules, for example, allowing a party to e-file a single PDF copy of a brief rather than the numerous additional paper copies otherwise required under Rule of Court 8.44. E.g., 1st Dist. L.R. 16. Additionally, e-filing a brief in the Court of Appeal satisfies any requirement to serve a copy of that brief on the Supreme Court, and vice versa. As for the Supreme Court’s own e-filing process, it has been significantly streamlined, but the Court continues to require a single paper copy of most documents e-filed in civil, criminal, death penalty and habeas corpus matters. See Supreme Court Rules Regarding Electronic Filing, Rule 5 (last amended May 1, 2018).

Moreover, an attorney’s registration to use the TrueFiling system—which is now mandatory—constitutes consent to electronic service of documents through TrueFiling. This generally eliminates the need to serve other parties in the case with paper documents although, as discussed above, e-service through TrueFiling is not currently required.  The exception is in cases where a party is representing himself or herself pro se and is exempted from the requirement to register with TrueFiling. Those parties still must be served with paper copies of all filings.

Parties and counsel should also continue to be aware of the rules for service on non-parties, which have not changed. A copy of each appellate brief must be served upon the superior court clerk for delivery to the trial judge. Cal. R. Ct. 8.212(c)(1); 8.500(f)(1). In cases involving non-party public officers or agencies, certain statutes require those non-parties to be served with a copy of the brief. Cal. R. Ct. 8.212(c)(3); 8.500(f)(2). And where a case questions the constitutionality of a state statute or implicates state interests in certain enumerated ways, a copy of the brief must be served on the Attorney General. Cal. R. Ct. 8.29(c). 

At end, it can seem a bit daunting to tackle an e-filing with one of the Courts of Appeal or the Supreme Court, particularly for newer attorneys or those whose most recent experience in the appellate courts took place before the adoption of the TrueFiling system. But the relative uniformity in e-filing procedures and rules thankfully makes it easy to get up to speed in any of the appellate courts throughout the state. Doing so can help to ease a bit of the burden on courts and clients alike.

[1] Mr. Williams is an attorney at the law firm of Wargo & French LLP and has been certified as a specialist in the field of appellate law by the California State Bar. He is admitted to practice and has significant experience in the California state appellate courts, along with the U.S. Court of Appeals for the Ninth and Eleventh Circuits. He is available for consultations or referrals and can be contacted at [email protected].