Indiana Appellate E-filing

Rules and

Recommendations

Kevin S. SmithChurch Church Hittle + Antrim

&

Maggie L. SmithFrost Brown Todd LLC

General Considerations Regarding

E-filing in Indiana

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Step 1: Procure Necessary Technology Computer, preferably with multiple screens (to mimic desk space)

High-speed Internet (avoid dial-up)

PDF software (e.g., FoxIt, Nuance, Adobe Acrobat, LibreOffice, Pdftk, PDF Studio)

Scanner (for converting paper docs to PDF for filing)

• Capable of at least 300 dots per inch (dpi) resolution

• Capable of scanning in color at 8 bits per pixel (bpp)

• Sheet-feeder (for multi-page docs)

• Scanning software that converts scanned docs to text through Optical Character Recognition (“OCR”)

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Step 2: Choose Electronic Service ProviderCurrently five to choose from . . .

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• a/k/a “Odyssey File & Serve” from Tyler Technologies

• Free to use.

• Basic, bare-bones product for e-filing and e-service

• Can e-file/e-serve, or just e-serve

• Extensive training materials and support (but support only available 7 am – 9 pm, M – F)

• Can save progress for a filing and come back to it later

• Allows for creation of “templates” for quicker drafting of case-related documents

• Filing fees currently can only be paid by credit card

• Has “Financial Reconciliation Report” feature for reconciling filing fees with your credit card invoices

• May “time out” when uploading large files (as compared to other EFSPs) if you have slow internet upload speed.

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• Basic user interface

o You may be familiar with it if you’ve been using Doxpop to look up court records

• Numerous ways to contact support, but only between 8 am – 5 pm, M – F

• Payment of filing fees by credit card only

• Subscription pricing based on number of “searches” per month, rather than number of filings

o Minimum of 20

o “Saved cases” feature allows you not to do a “search” each time you want to view the docket in your case, up to the number of “searches” in your monthly subscription

o Calendar feature by bar number – populates calendar with all your upcoming court events, and synchs those events with Outlook calendar. If court reschedules or cancels event, change updated automatically in Outlook next time you synch.

o Case alert system – provides email notification each time something happens in your “saved cases” (e.g., minute entry, docket entry revision, etc.)

• Currently does not support filing documents into “confidential” cases (e.g., AD, JC, JD, etc.), but that should change soon.

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• Three service plans, none of which are “free”

o Pay-as-you-go =$1 per filing

o ≤ 50 filings per month = $29 per month, $1 per filing thereafter

o ≤ 150 filings per month = $69 per month, $1 per filing thereafter

• Simple, intuitive, modern user interface with “case summary” views

• Numerous ways to contact support, which is available 24/7/365 (except five holidays)

• Automatically converts word processing docs into text-searchable PDF format

• Email notification when document accepted for filing, with file-stamped document attached.

• Detailed reporting feature to view filings and associated fees organized in multiple ways, including by client matter number, by attorney, and by case.

• Purports to work well on mobile devices and tablets

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• Three plans: Basic (free); Gold ($2.99 per filing); and Platinum ($3.99 per filing)

• Customizable reporting (All plans)

o Allows creation of data spreadsheets for only the figures you want to track

o Spreadsheets can be exported to Microsoft Excel

• 24/7 support via email or phone, and online chat support 8 am – 6 pm (CST) M-F (All plans)

• Mobile Phone version (All plans)

• Extended document storage (Gold and Platinum)

o Saves file-stamped copies of eFiled and eServed documents for three (3) years.

• Document converter feature (Gold and Platinum)

o Automatically converts files into the required PDF format

o Resizes/reorients document if not proper size or orientation

o Warns if security features in document will cause filing to fail

• Monthly Invoicing (Platinum Only): Allows eFiling and eService charges to be combined

into a single monthly expense, eliminating monthly reconciliation of firm’s submissions

against credit card(s).

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• Newest EFSP

• Single plan -- $1 per filing, with no additional fees for additional features

• “Dashboard” view allows easy monitoring of your e-filing’s progress through clerk review

• Can e-file/e-serve, or just e-serve

• Long term document storage of file-stamped documents using your firm’s internal

client/matter coding

• Customizable reporting (in development)

• Website self-help training videos (in development)

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Websites:

• Neat Filing http://www.NeatFiling.com/

• File Timehttps://in.FileTime.com/

• Green Filinghttp://www.greenfiling.com/indiana/

• Doxpophttps://www.doxpop.com/prod/StartEfiling

• Odyssey File & Servehttps://indiana.tylerhost.net/OfsWeb/

Chart available at http://www.in.gov/judiciary/files/e-filing-efsp-comparison.pdf

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Step 3: Set Up Your E-filing Account Do this through your EFSP

Choose your “Firm Administrator(s)”

• Firm Administrators register firm account and manage firm’s contact information/data

Choose “firm account” (as opposed to “individual account”)

Create “service contacts” for your firm

• Anyone who will receive service of filings - even courtesy copies (i.e., attorneys, paralegals, secretaries, etc.)

• Each user must have a unique user name and password -- multiple persons in firm cannot share a username

• Multiple People Served in Every Case: A “service contact” may have multiple emails addresses associated with it (use when attorney wants his same assistant, paralegal, etc. getting copies of all filings in his/her cases).

• Multiple People Served on Case-By-Case Basis: Add additional people from your firm’s service contact list for a specific case (use when certain people should receive courtesy filings in specific cases)

From your “service contacts,” designate your attorney contacts as “public” (adds them to Public Service List)

• “Public Service List”: Directory of people who have agreed to receive service via email.

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Additional E-filing Considerations• E-Service

o Make sure you are listed as a “service contact” in each case.

Just because your name is listed in the “Party Information” section of a case screen does not mean you are set up as a “service contact” for that case.

You will not be served electronically if you are not listed as a “service contact” on a given case.

o Update your e-mail address through your EFSP if it changes (updating on ROA does not accomplish this)

o When e-served, download the document asap -- temporary link only good for 35 days (unless EFSP offers something different)

o Response deadline counted from date on Notice of Electronic Filing

NO additional three (3) days when served via e-service

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Additional E-filing Considerations• Files & Envelopes

o Multiple files can be e-filed in a single envelope (encouraged)

E.g., motion, supporting affidavit, and proposed order – 3 different files, but filed in same envelope

All documents contained in a single file must match the “filing code” selected for that document, (e.g., file given “Brief/Appendix/Addendum” filing code cannot include a motion), but envelope can contain files that have been given different filing codes.

o Size Limits: 25 MB per document; 35 MB per envelope

Exception: In appeals, Appendix volume cannot exceed lesser of 250 pages or 20 MB

o Tips to reduce file size

Avoid scanning - convert documents to PDF directly from Word or WP when possible

When scanning, keep resolution at 300 dpi (minimum required by the rules)

Scan in color only when necessary

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Additional Considerations• Timing

o E-filing must be completed by midnight to be considered filed that day.

E-filing is completed when envelope is fully uploaded and transmitted to through the IEFS.

Don’t wait until the last minute to e-file your document, particularly if it is large.

o Document considered e-filed on date/time reflected in Notice of Electronic Filing associated with the document.

Date/time determined by time zone in which court resides, not filer.

Filers in Gibson, Jasper, Lake, LaPorte, Newton, Perry, Porter, Posey, Spencer, Starke, Vanderburgh and Warrick Counties need to e-file their documents before 11 p.m. local time if filing on due date.

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Additional E-filing Considerations• “Must Have” Information

o “E-filing User Guide”:(http://www.in.gov/judiciary/files/efiling-user-guide.pdf)

o “E-filing Frequently Asked Questions”(http://www.in.gov/judiciary/files/efiling-faq.pdf)

o E-filer Training and Support Information, found at:http://www.in.gov/judiciary/4315.htm

o Current Info on Statewide E-filing Initiative, found at:http://www.in.gov/judiciary/4267.htm

Sign up to receive real-time e-filing updates: http://www.in.gov/judiciary/4295.htm

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E-filing Specifics for

Indiana Appeals

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1. Appellate E-filing Overview• E-filing mandatory as of July 1, 2016 for all “subsequent filings” by

attorneys in all appellate matters

o Filings in which “case initiating document” has already been filed (e.g., Notice of Appeal, Motion to Accept Interlocutory Appeal, etc.)

o “Case initiating documents” still filed and served conventionally

o E-filing voluntary for pro se parties

o Not Original Action filings (Writs of Mandate/Prohibition)

• E-filing of “case initiating documents” is planned for early 2017

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2. Key Appellate Rule Amendments• Service of Notice of Appeal on Court Reporter: Notice of Appeal

must include Court Reporter e-mail address and must be served on Court Reporter via both conventional service and electronic transmission. (Rules 9(H) & 24(A)(1)(c))

o If Court Reporter is on the Public Service List, then NOA can be sent through IEFS.

o If Court Reporter is not on the Public Service List, then NOA must be sent via e-mail

• Payment for Transcript: Court Reporters can now require 50% deposit on estimated cost of Transcript before she begins work on it. (Rule 9(H))

• Electronic Transcript Only: In appeals filed after 7/1/16, Transcript

submitted to appellate court in electronic format. (Rules 11(A), 12(B) &

28 and Appx. A)

o Documentary exhibit volume may be submitted in either electronic or paper format (Rule 29)

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2. Key Appellate Rule Amendments• Page numbering: Motions, petitions, briefs, appendices, addenda,

etc., now numbered with page “1” being the front page, and all pages consecutively numbered thereafter (including Table of Contents, Table of Authorities, etc.) (Rules 43(F), 46(H))

• Colored covers replaced by headers:

o Briefs and petitions no longer have colored covers.

o Instead, each page (except front page) has header “that lists the name of the party(ies) filing the document and the document name, aligned at the left margin . . . .” (Rule 43(H))

• Appealed judgment or order: Now filed as separate attachment to e-filed brief, rather than within same file.

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2. Key Appellate Rule Amendments• Appendix changes:

o Each Appendix volume is now independently and consecutively numbered (i.e., eachvolume begins with “1” on the first page) (Rule 51(C))

Citation to Appendix and Transcript must now be by Volume and then Page (e.g., “Tr. Vol. I, pp. 231-32” or “Appellant’s App. Vol. II, p. 5”) (Rule 22(C))

o Table of Contents is now its own free-standing volume and must be “Volume I”. (Rule 51(D))

o Appellant’s Appendix can now be filed in advance of Appellant’s Brief. (Rule 49(A))

o E-filed Appendices in criminal appeals must be served on Attorney General. (Rule 24(A)(4))

• Signature: Either . . .

o “/s/” and then your printed name (e.g., /s/ Kevin S. Smith), or

o a graphic image of your handwritten signature (e.g.,_______________) (Rule 68(H))

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2. Key Appellate Rule Amendments• Service:

o If attorney or party is on Public Service List, you must serve through IEFS. (Rule 68(F)(1))

o If attorney or party is not on Public Service List, then serve conventionally. (Rule 68(F)(2))

o Certificate of service must specify means of service, not alternatives (no “service by mail and/or the IEFS . . .”)

• Inability to E-File:

o If you are prevented from E-filing because of an IEFS system failure, then you may either conventionally file your document or motion the court to extend the deadline by one day for each day the system was down. (Rule 68(M)(1))

o If you are prevented from E-filing by any other circumstance not caused by you, then you may either conventionally file or file a motion for extension of time. (Rule 68(M)(2))

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3. Confidential Documents on Appeal• Procedure for filing confidential docs found at App. R. 23(F)

instead of Admin. R. 9(G)(5)

o Still look to Admin. R. 9(G)(1)-(4) for what records are excluded from public access.

• Confidential Information in Trial Transcript

o If trial counsel identified confidential testimony contemporaneously during trial, you need do nothing more – court reporter will do what is needed. (Appendix A(14)(b))

o If trial counsel did not and Transcript has not been transmitted, file Form # App.R. 11-3with trial court (Appendix A(14)(c))

o If trial counsel did not and Transcript has been transmitted, file Form # App.R. 11-4 with appellate court (Appendix A(14)(d))

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3. Confidential Documents on Appeal• Confidential Information in Appellate Filings by Party/Attorney

o “Notice of Exclusion of Confidential Information” (Form #App.R. 11-5) must be

contemporaneously filed with documents deemed confidential under Admin. R. 9(G)(2)-(4)

(except where entire record ordered confidential per Admin. R. 9(G)(4)).

o A Public Access Version and a Non-Public Access Version must be filed, except . . .

If entire document is confidential, then “Notice of Exclusion of Confidential Information” (Form #App.R. 11-5) serves as your Public Access Version. (Rule 23(F)(3)(b)(i)(b))

If omitted/redacted information is not necessary to disposition of case on appeal, then

only Public Access Version (with information redacted/omitted) need be filed, along with

Form # App. R. 11-6

o Omission/redaction must be indicated in Public Access Version at place it occurs. If multiple

consecutive pages omitted, use separate place-keeper inserts for each page, to keep page

numbering consistent with Non-Public Access Version. (Rule 23(F)(3)(b)(i)(b))

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3. Confidential Documents on Appeal• Confidential Information in Appellate Filings by Party/Attorney

o Non-Public Access Version Specifics

First page must be marked “Confidential” or “Not for Public Access” (Rule

23(F)(3)(b)(ii)(b)(1))

Page numbering must be identical to Public Access Version (Rule 23(F)(3)(b)(ii)(b)(1))

Green paper is no more! Pages containing confidential information are now instead

marked with a header, label, or stamp that states “CONFIDENTIAL PER A.R.9(G)” or

“EXCLUDED FROM PUBLIC ACCESS PER A.R.9(G)”

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3. Confidential Documents on Appeal• Redacting Confidential Information

o Some old redaction methods that worked for paper will not work for e-filed documents.

Examples of methods that no longer work include. . .

Covering text with a black rectangle in Word or WP

Highlighting text in black in Word or WP

Changing text color in Word or WP

o Most PDF software that allows you to “edit” has specific redaction functionality

o Check your “redacted” document before uploading to make sure it is really redacted!

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3. Confidential Documents on Appeal• E-filing Document Security Codes

o When e-filing a document, each EFSP requires you choose a security code for the document

as part of the e-filing process (Odyssey File & Serve shown below)

o Bob Rath, Director of Appellate IT at the Supreme Court, has posted a helpful chart on the

Supreme Court website that shows which security codes to use and which documents should

be filed as the “lead document” . . .

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This chart can be found at http://in.gov/judiciary/files/efiling-ar9-guidance.pdf.

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Who do I call with questions????

• Case-specific or rule-centered questions:

Appellate Clerk’s Office (317.232.1930)

• Tech-centered and “how do I” questions:

your EFSP

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Practical Tips for Practicing in Indiana’s Appellate Courts

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Brief Writing1. Know Your Audience(s) and Draft Your Brief Accordingly

a) You are drafting for appellate jurists

• Nearly all their time is spent reading, and your brief is just one of dozens they will

read on a given day.

Capture and keep their attention

Make your brief easy to read and your main points easy to follow

• They are “generalists, particularly in civil matters

Don’t assume they are well-versed in the law at issue – explain generally

before getting into specifics

In obscure or complicated case, consider “Introduction” section before

“Statement of Issues” that puts Statement of Issues in context.

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Brief Writing1. Know Your Audience(s) and Draft Your Brief Accordingly

b) You are also drafting for law clerks

• Often just out of law school, or “career clerks” who may have never been in

private or haven’t been for many years

Educate on the area of law

Explain procedural nuances and their relevance – don’t assume intimate

understanding of discovery or trial process

• They will look up your record and case citations

Make sure each factual assertion in brief is supported by record citation

Make sure each record/case citations really says what you say it says

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Brief Writing2. Craft Brief for Screen Reading Instead of Paper Reading

a) Font/typeface recommendations

• Use proportionally spaced instead of monospaced, and sans serif instead of serif

Rule 43(D) currently only lists one proportionally spaced sans serif font – Arial

Rule 43(D) likely will be amended in near future to catch up with screen reading

recommendations, as at least one screen reading expert has recommended use of other

sans serif fonts, such as Franklin Gothic and Gill Sans, in place of Arial.

Avoid ALLCAPS, especially for lengthy passages of text (even headers)

Emphasize with italics instead of underlining, and save boldface for headings

Underlining for case names, and italics for emphasis and signals?

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Brief Writing2. Craft Brief for Screen Reading Instead of Paper Reading

b) Make effective use of white space

More paragraphs, and shorter paragraphs

Larger margins (1.25” to 1.5”)

One space after period, rather than two.

Left-aligned text rather than full justification

c) Substantive headers

Left-aligned, containing substantive points

Scientific enumeration (1.1,1.2, 2.1) instead of hierarchical (I.A, I.B, II.A)

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Brief Writing2. Craft Brief for Screen Reading Instead of Paper Reading

d) Use hyperlinks, but sparingly

Hyperlink Table of Contents entries to headings

Hyperlink internal cross-references to the cross-referenced section

Hyperlink case citations? -- Maybe

Not yet ready for hyperlinking record citations to Appendix and Transcript, but

appellate courts are working toward it.

e) Use PDF bookmarks

Allows judge to have virtual TOC up on side of screen as she reads brief

Allows easy navigation and for reader to see brief’s organizational scheme as she

reads the document, rather than scrolling back up to TOC

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Brief Writing2. Craft Brief for Screen Reading Instead of Paper Reading

f) Be concise and use good intro/transition sentences

Keeps reader’s interest and helps reader understand flow of brief

g) Use consistent terminology

Allows thorough text searching, which is important in screen reading

h) Lists are encouraged

Creates eye-catching cue about location of important information

i) Carefully consider use of footnotes

Judges tend to skip footnotes, particularly when screen reading (because of scrolling)

If use, link footnote number in text to the footnote below so reader can click back and

forth between them

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Brief WritingFor more information on crafting documents for screen reading, consider these resources:

• Mary Beth Beazley, Writing (and Reading) Appellate Briefs in the Digital Age, 15 J. App. Prac. & Process 47 (2014)

• Matthew Buttrick, TYPOGRAPHY FOR LAWYERS (Jones McClure Publ’g, 2nd ed. 2015)

• Prof. James D. Dimitri, Best Practice in Document Design, Res Gestae, May 2014, at 24.

• Prof. James D. Dimitri, Writing for Screen Readers in the Wake of Indiana’s E-filing Initiative, Res Gestae, December 2015, at 25.

• Ellie Neiberger, Judge-Friendly Briefs in the Electronic Age, Fla. B.J., Feb. 2015, at 46

• Daniel Stockwell, Writing: A Brief for the iPad Judge, Colum. Bus. L. Rev. (Jan. 14, 2014, 11:26 a.m.), http://cblr.columbia.edu/archives/12940.

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Brief Writing3. Don’t minimize importance of “Statement of Issues” and “Questions

Presented on Transfer”

• Often is the first thing a judge or justice reads

• Affects degree of enthusiasm with which judge/justice continues reading

• Influences the lens with which the rest of brief or petition is read

• Sets the parameters of the battleground on which appeal will be fought

• Draft in such a way that reader is left wanting to read further and answering the question the

way you want her to . . .

“Whether the trial court abused its discretion when it gave plaintiff’s tendered jury

instruction.”

“Whether the court abused its discretion when it used plaintiff’s jury instruction on

incurred risk instead of defendant’s, when defendant’s instruction followed the model

jury instructions and plaintiff’s instruction has been repudiated by the Court of Appeals

in several recent published opinions.”

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Oral Arguments• Court of Appeals

o Much rarer than in Supreme Court (only about 7% of all appeals)

o However, Court of Appeals often grants motions for oral argument (about 85% granted)

o Particularly helpful in cases of first impression, where there is panel-split of authority, cases

with confusing facts relevant to outcome, or cases involving important policy issues

o Order setting oral argument will identify your three-judge panel

• Supreme Court

o Vast majority of cases in which transfer is granted will have an oral argument

o When you get the order, note whether transfer has already been granted

o Not as favorable toward demonstrative exhibits as is Court of Appeals

Contact opposing counsel in advance to secure approval

Notify Court Administration Office in advance

If possible, give to Court Administration Office several days before, rather than day of

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Oral Arguments• Tips

Know your record cold

Anticipate holes in case and questions that would be asked regarding them

Avoid hyperbole, flamboyance, and name-calling. This isn’t a jury trial.

Stay at podium (hands on podium good idea)

Caution: “splitting your time” with another attorney can be problematic

Listen carefully to questions and answer them thoroughly

It is more important for Judges/Justices to get their questions answered than it is for you to

get through your prepared presentation

Have your three or four key things you want to make sure the Court hears and make sure

you work those into your answers

Engage in discussion, not debate

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Questions?

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