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Peter B. Broida Attorney at Law
2009 North Fourteenth St. Suite 705 Arlington, VA 22201 703-841-1112 Fax: 703-841-1006 February 12, 2007 Clerk Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington DC 20439 Re: Proposed Rule Requiring Digital Filings Gentlemen: I write to you concerning the proposed rule that would require digital filing of briefs and
appendices. My practice involves representation of federal employees before the Merit Systems
Protection Board and before the Federal Circuit. Additionally, I am responsible for
operating a small publishing company that produces lawbooks in the field of civil service,
including a couple that I write. In the process of producing these books, I have become
familiar with the complexities of sophisticated word processing systems and desktop
publishing, including the digital production of law textbooks and internal hyperlinking for
those publications. My concerns as to the rule as it is presently proposed are two. First, as a general matter,
the proposed rule adds yet another level of complexity to the process of appellate briefing,
itself already a fairly complicated process as a result of the need to meet many
particularized rules set by the Court governing the assembly and reproduction of briefs and
appendices. Second, there is the matter of the cost, which is either passed along to a
client or absorbed by the lawyer as overhead. First, as to the matter of cost, many federal employees who have been fired from their jobs
do not have the resources to employ lawyers; hence the high rate of pro se representation
before the MSPB as well as the Federal Circuit. As to those individuals who are able to
employ counsel, the cost is very significant. In cases where counsel are employed, of
those cases that are favorably presented to the Federal Circuit in the civil service arena,
there are a few outright reversals, but there are more remands. Since counsel fees cannot
ordinarily be obtained based upon a remand from the Federal Circuit, and since the MSPB
holds that it cannot award counsel fees for time spent in court, that means that represented
appellants who obtain remands from the Court generally cannot recover the expense of
legal representation before the court, including the time that would be required for
complying with a rule requiring digital filings. I am also concerned that in civil service cases, the Justice Department or MSPB, which
routinely defends these cases in the Federal Circuit, would begin attempting to tax the cost
of digital reproduction of briefs and appendices in those cases in which the Government
prevails, which represents about 95% of all civil service cases litigated before the Federal
Circuit. Second, there is the matter of the complexity. The two major wordprocessing programs
in use by most counsel are Microsoft Word 2003 and WordPerfect 12. Both of these
programs convert files to PDF, but the conversion is often flawed. Matters become more
complex with hyperlink conversions; sometimes they convert without problems, and
sometimes a lot of time is spent relinking or troubleshooting links before the conversion
process works. At times you can work around the linking problems in the word processing
file by creating new links in Adobe 7 Professional (not the reader). Once these files are
created, the proposed rule would then require that the files be saved on a DVD-ROM. That
imposed additional expense upon some lawyers who do not presently have DVD-ROM
burners. Rather than unduly complicate the matter of preparation of filings with the Court, I suggest
a compromise. Allow lawyers to scan the paper copies of their brief and appendix, save
the scans in PDF format and allow those files to be filed with the court, and served upon
opposing counsel, by e-mail. If counsel does not have the equipment to perform that task,
a certification of hardship or inability to comply with the rule would be sufficient to absolve
counsel of that obligation. Additionally, the cost of providing digital files should not be
taxable, or the Court will end up dealing with disputes concerning how the cost of the work
is calculated, i.e., lawyers and the government will likely try to base the cost on the
acquisition and maintenance of expensive electronic equipment and software. In short, there are advantages of allowing lawyers and the public to access briefs and
appendices filed with the Court, but I think the process that is simplest and least expensive
will accomplish that result almost as well as a far more complex process that is being
suggested by the Court. It is important for the Court to recognize that the diversity of its caseload also suggests a
diversity of the resources available to lawyers and their clients. Multimillion dollar patent
disputes involving representation by large law firms involves litigation financing on a far
different scale than representation of a General Schedule employee before the Court by
an attorney in any very small law firm or by a solo practitioner. On a personal note, when I began practicing law, lawyers prepared legal work and
secretaries typed the work. Lawyers did not type. Now lawyers are data processors,
software engineers, and hardware technicians, unless they are fortunate enough to have
on hand IT personnel who can rapidly diagnose and correct a problem—a true luxury. I
have a bias towards simplicity in the practice of law. Simplicity has the considerable
advantage of preserving my sanity and the secondary advantage of keeping the costs of
representation to clients a little lower. I hope my comments are of use to you. Yours very truly, Peter B. Broida |