Joe,
I indicated that a letter had been sent to the US Supreme Court on the topic
of electronic filing of briefs in 1993. Here is a copy of that letter.
Alan
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Alan D. Sugarman Federal Appeals on Disc tm CD-ROM
President Opinions of US Court of Appeals
1993 to Date - All Circuits
HyperLaw, Inc. ®
P.O. Box 1176
New York, NY 10023
sugarman@hyperlaw.com 212-787-2811 212-496-4138(fax)
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[HyperLaw Letterhead]
December 17, 1993
Mr. William K. Suter
Clerk
Supreme Court of the United States
1 First St., N.E.
Washington, DC 20543
Dear Mr. Suter:
This letter is being directed to you in your capacity
as the statutory officer responsible for receiving
briefs for filing with the Court. We are including
this letter with our response to the request for
comments on the Mercury experiment because we support
your efforts to move ahead with the electronic filing
of briefs.
We understand that technology and related staffing
resources at the Court are not unlimited. In a perfect
world where resources are unlimited, it would make
sense to pursue and expand Mercury. However, if
resources are limited, the issue is whether to divert
resources toward dissemination of image files and away
from electronic filing.
SUMMARY
Project Mercury should refocus its efforts away from
image transmission and towards electronic collection of
briefs in ASCII or word processing format and
dissemination in the same format. Image transmission
serves primarily the interests of few well capitalized
vendors with the resources to fund the communication
costs and the conversion of the data to text format.
Image transmission establishes the highest possible
barriers to redissemination of the information and
diverts resources and attention from electronic filing.
DISCUSSION
Transmitting text information in graphic image format
is cumbersome and expensive. In most contexts, image
dissemination of text information is a transitional
technology. Distribution of text information in image
format makes sense where the information does not exist
in electronic text form and where the disseminator
(i.e., the Court) has no control over the originator of
the information (i.e., the attorney.) We cannot think
of any situation where the originator is not more
subject to control that a party filing a brief with the
Supreme Court of the United States.
Image transmission is very expensive -- our telephone
bills for the transmission of the 100 briefs was
approximately 700 dollars. Preparing accurate text
versions of the files would cost as much as $1.00 to
$2.00 a page. There were about 5,000 pages. We
understand that the project imposed substantial demands
on court personnel resources.
The Securities and Exchange Commission has already
experimented with imaging to collect and disseminate
information. After years of contracting with a third
party to image SEC documents, the SEC has rejected that
approach and instead established the EDGAR system that
requires public companies to file in the Standard
Generalized Markup Language ("SGML") format. This
year, the largest public companies are filing
electronically with the SEC.
Many of these companies are represented by the same law
firms that also file briefs with the Supreme Court.
The SEC is not the only entity requiring the SGML
format. West, Lexis, and Thomson are among the
heaviest users of SGML in the country . SGML is
required by other governmental agencies including the
Department of Defense and is being implemented by the
Government Printing Office. Companies such as
Microsoft and WordPerfect are hard at work preparing
programs to prepare text in SGML format. WordPerfect
Corporation even has a program available, IntelliTag
which converts WordPerfect to SGML. Among other
things, EDGAR has forced the issue for any law firm or
accounting firm representing the 6000 or so public
companies which will have to use SGML. They must
accommodate to SGML.
One should not overestimate the complexity of SGML
tagging. One could devise a complicated tagging
scheme, but that is not necessary. The SEC chose to
require relatively simple tagging. There are two types
of tagging: one type of tagging tags styles and formats
such as block indent, centering, and italics. The
other type of tagging tags content such as the docket
number, date, name of parties, and identification of
sections of the brief, such at the statement of the
case, table of authorities, etc.
Under the EDGAR approach, the costs of submitting
information in electronic format is imposed upon the
originator of the information. Efficient and self-
sufficient originators (i.e., parties filing briefs
with the court) who use low priced word-processing
products have very insignificant additional costs.
Those information originators who do not use widely
available word processors or who utilize legal printers
who still do not have electronic typesetting (the Court
converted to electronic typesetting in 1982!), and
there are some, will bear the costs to have the
information converted by outside service companies.
Today there are very few law firms not capable of
submitting copies of their filings with the Supreme
Court in electronic format. Many parties filing with
the Court do not use outside printers to prepare camera
ready copy. Indeed, from my experience, that those
with the least financial resources are least likely to
use outside companies to set type. They do what the
Court does for its slip opinions*use low cost programs
such as WordPerfect to prepare briefs that appear as if
they were typeset.
Accordingly, we propose that the Clerk's office request
all parties filing briefs also submit with the brief,
or within a few days thereafter, an electronic version
of the brief, filed on a DOS 3.5" diskette. For the
present, a party could ask for waiver from the rule by
stating that they do not have an electronic version, or
that submitting an electronic version would place an
undue burden on the party.
We believe that requiring the electronic copies be
filed immediately in WordPerfect or ASCII would be
acceptable in the short run until a standard SGML
format was devised by the Court.
The briefs would then be retransmitted as are slip
opinions through the Hermes network on a test basis.
And, the court would then have its own electronic file
which could be of great benefit to the Justices and
court staff.
Within the next year, using the real life sample, a
standard SGML format could be developed by the Court
with the cooperation of bar groups. This could be a
rather simple process. As an example of content
tagging, the name of the docket number of the case
could be tagged as follows:
"<DocketNo>93-0002</>"
As an example of style or form tagging, an italicized
case citation may be tagged as follows:
"<IT>United States v. Jones</>
I have taken the liberty of bringing this experiment to
the attention of members of the JEDDI group that has
been discussing electronic means of handling court
documents. I expect that individual members will
provide further information on SGML to you as well as
expressing their individual views.
Our biggest fear is that the court Mercury will develop
a life of its own and create a constituency expecting
to receive images. Some may assume that the
information dissemination needs are being met, and it
will become even harder to move to SGML. In the
meantime, image dissemination increases barriers to
redissemination and diminishes the availability of the
briefs. For years vendors have been microfiching Court
briefs, and, market that information at a lower cost
than what Mercury costs.
Finally, the process of gathering the views of the
legal community on this project is very constricted.
Only the views of the few Hermes recipients with the
necessary capital or specific interest signed on to the
Mercury test, and thus only their views are being
considered. Some of those have a decided interest in
maintaining high cost barriers to this information.
In addition, there is more than one way to transmit
images. Our preference would be to receive the
information in 8mm tape format and placed in our mail
box in your office. However, this experiment was
established based up the needs of one vendor who then
contributed the equipment. There was no prior
solicitation of views from other vendors.
Sincerely,
Alan D. Sugarman
President and CEO
[HyperLaw]
cc:
Frank D. Wagner
Jim Donovan
Mr. Frank D. Wagner
Reporter
Supreme Court of the United States
1 First St., N.E.
Washington, DC 20543
Mr. James Donovan
Director, Data Systems Office
Supreme Court of the United States
1 First St., N.E.
Washington, DC 20543
You can be certain that when these legal publishers receive a Mercury
brief, they immediately
convert it to SGML format.
As an example of content tagging, the name of the docket number of the
case could be
tagged as follows:
"<DocketNo>93-0002</>"
As an example of style or form tagging, an italicized case citation may be
tagged as follows:
"<IT>United States v. Jones</>
Parties could be given the name to assign to the file, such a 930005.pet.
The court could even
preprint color-coded labels. In addition to asking the parties to check their
own disks, the Court
could have a stand-alone computer do a virus check on each diskette as it
arrives.
This does not mean that imaging equipment has no place in the Court's
technology scheme. For
example, the Court may very well decide to be store images of briefs on
optical or magnetic
media. Thus initially, the Court could scan, store and reprint breifs in an
image format on an
integrated high speed optical storage printing system, such as are available
from Xerox, Kodak,
and IBM. Once the Court establishes an SGML format, the same equipment could
convert SGML
documents for printing on the same high speed equipment. You may have also
heard about a
Acrobat and Postscript as a way to deliver information. These approaches are
not needed when
the material is almost all textual. In any event, there is no
incompatibility. It is quite simple to
create a Postscript or Acrobat file from a SGML file.
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