I'm always interested to learn about how judges are using iPads, not only because I use my own iPad so much, but also because I often think about the way that a judge and law clerk will read my brief when I am making decisions on how to make my brief more persuasive. Last week, I attended a CLE sponsored by the New Orleans chapter of the Federal Bar Association. It was a "meet the bench" event featuring three of the newest members of the U.S. Fifth Circuit — Hon. James C. Ho, Hon. Kurt D. Engelhardt, and Hon. Andrew S. Oldham — who were interviewed by Hon. Edith Brown Clement.
When the presentation allowed for questions from the audience, I asked the judges whether they prefer to read briefs in paper, on the computer, or on an iPad, and whether that led them to have any preferences on how the brief is written, such as whether they prefer to see cites in the text or in the footnotes. All four judges said that they were big fans of the impressive use of technology at the Fifth Circuit. For example, after a lawyer e-files a brief, the court adds hyperlinks to the PDF version of the brief so that a judge or law clerk can tap on a record cite to instantly see that part of the record or tap on a case cite to read the legal opinion. Two of the judges answered my question by saying that their preference was to read briefs on the iPad, and both of them remarked that it is nice to be able to just take home an iPad without any other paper and still have everything that the judge needs to work on an appeal. The other two judges said that they prefer to read on paper but that their law clerks made extensive use of the digital versions of briefs.
In a post earlier this week on Above the Law, Massachusetts attorney Robert Ambrogi argues that the duty of technological competence that the ABA added to the Model Rules of Professional Conduct in 2012 should apply to judges as well. In my experience, I'm already seeing more and more judges taking advantage of technology, whether it be courtroom technology in trial courts or judges at all levels using iPads and other tech as a part of their workflows. The interest in technology that these four Fifth Circuit judges displayed is consistent with this.
It was nice to see the enthusiasm of the judges as they talked about how the iPad is used, but they had so much to say on that topic that they never got around to answering the second part of my question — which I found somewhat amusing because when I present an oral argument to Fifth Circuit judges I am very conscious of fully answering the questions that the judges ask me. Having said that, in the past, I've heard other federal Fifth Circuit appellate judges and law clerks say that they either have no preference on citation format or they prefer cites in the text so that they can take advantage of the hyperlink function to immediately view the record or jump to the applicable part of a case without having to first scroll all the way down to the bottom of the page to find the cite in the footnote. And for that reason, that's how I prefer to write my own federal appellate briefs. I still use footnotes if I want to make a less important point that doesn't belong in the text, but I try to keep them to a minimum.
