TALP 3 | Streamline The Appellate Process

 

Courts all over Texas increasingly rely on technology to facilitate document filing and records management. On top of making the filing process more efficient, technology has helped improve the accuracy of court records. In this episode, Texas Supreme Court Clerk Blake Hawthorne joins Todd Smith and Jody Sanders to discuss his role at the Court, the increasing ways technology streamlines the appellate process, and new things on the horizon for the Supreme Court and court record access.

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Technology on Appeal, Present and Future | Blake Hawthorne

Our guest is Blake Hawthorne, the Clerk of the Supreme Court of Texas. Welcome to the show, Blake.

Thank you for having me. I appreciate it.

If you’ve been licensed in the last few years, you can probably turn around and look behind you and find Blake Hawthorne’s name on your license. He’s the guy that signs it. He is the Clerk of the Court. Blake, can you tell us a little bit what the clerk of the court does here at the Texas Supreme Court?

I’d describe it as everything from duct tape to procedural advice. I wear a lot of hats, and you talked about law licenses. That’s one of the things I do is I oversee the licensing process for new attorneys. We issue all the law licenses in the state and work with the State Bar to do that and run the swearing-in ceremony. I’m responsible by statute for collecting your fees. When you send in your fees, those fees are made out to the Clerk of the Supreme Court of Texas. That’s just one of the things I do. I’m the clerk of the court and that involves overseeing the staff and the clerk’s office. I have about ten people that work for me, and we manage all the filings, the telephone calls, and all that.

You think about any organization that has its bricks and sticks problems. I work with Justice Green on some of those in terms of making sure that the courtroom is put together. And when we have new wiring that needs to be done, I’ll work with the people from DIR that come in and rewire the building. A few years ago, we put in webcasting equipment here in the Supreme Court. Thanks to the Appellate Section, we upgraded that equipment. I’m the guy around here that knows where all those wires are because I’ve been here that long. Sometimes I even get out on the bench here and show people where stuff is and how things need to be done in that regard.

You’re also every appellate lawyers’ best friend because you have the power in your office to grant unopposed extensions for briefing, do you not?

Every time I do a CLE and I talk about the internal operating procedures of the Court, I like to point that out, and then suddenly I have a room full of new friends if they didn’t know that before. We process close to 1,000 motions for extension of time a year and most of that is done in the clerk’s office. If they’re unopposed, they’re handled by my staff in the clerk’s office. I was tweeting about how long it used to take for us to process motions for extension of time back in the paper days because that was my homework. I would do all this other stuff during the day and at the end of the day, I would have a stack of extension requests that I would take home in a bag with stamps. I would sit at my dining room table, go through those, stamp and write on there the due date for them. I would bring them back the next day and hand them off to staff to input that into our system.

That’s quite a vision because things have changed so drastically in the past ten years. I have to settle an age-old question. Is there any point at all in opposing a motion for extension of time in this Court? 

I practiced law before I became the clerk of the court. I had a judge here on the Court ask me that before going to a CLE because it was a question that was going to be asked of her. Specifically, she asked me about the Standards for Appellate Conduct and what it says about opposing an extension request. She asked me, “Does it really matter?” I said to her, “Those are handled in the clerk’s office and you should know your audience.” I think it matters, and so that’s why it matters. In my experience in practice, one of the things that I hated the most was calling up opposing counsel and having them tell me, “I need to talk to my client,” which I knew would mean that they were going to get back to maybe in 2 or 3 days or I was going to have to call them and ask them again if they talked to their client yet. A lot of times the answer was, “I’ll get to that. I’ll get back to you.” In the meantime, the clock is ticking. I encourage people not to oppose extensions. The Standards of Appellate Conduct say that your client doesn’t have the right to tell you not to agree to an extension request. There are exceptions to that. The rare instance where I see that opposing an extension makes sense is where something bad is going to happen to your client. There’s property you’re going to lose, there’s going to be some concrete injury to your client, and you can’t agree to it.

The Supreme Court clerk provides everything from duct tape to procedural advice. Click To Tweet

That’s helpful to know because some of us, we haven’t had that come up, but yet sometimes those opposing counsel, we do get that, “I have to talk to my client” line, and if you can’t tell, this is one of my pet peeves. One thing that does happen is that, particularly when you get to the merits briefing stage, the Supreme Court will telegraph to the parties, “We don’t want to see any more extensions.” What’s the thinking behind that?

We have a system that’s been in place since before I was the clerk. Our former clerk, Andrew Weber, put it in place, and we’ve changed it a little bit over the years, but it’s essentially that same system, and we lay it all out in our internal operating procedures paper. If you want to know how many extensions I am going to get on a brief on the merits, you can read the paper and you’ll see. And you’re right. We do telegraph to you, you’re starting to push it when we say, “Further requests will be disfavored.” When we say no further requests, we mean it, and that is the rare instance in which I have seen extensions denied. I’ve never had the Court, when I have told them this is the fourth motion for extension of time to file a petition for review, and with the last one we told the parties there would be no further extensions granted, and therefore I think you should deny this one. I’ve never had them disagree about that. Sometimes even when we say no further, if you’re in the hospital, we understand. We’re not heartless about it, but typically when we say that we mean it.

You mentioned your internal operating procedures paper. I’d love to make that available to our audience. There’s also another paper that you’ve written and updated all about the process of preparing electronic briefs. Can you speak to that?

I call it The Guide to Creating Electronic Appellate Briefs. It’s been copied around the country. The Colorado judicial system has taken parts of that, and the California appellate courts have adopted it whole-hog, so it’s the guide out in California too. I was heavily involved in getting electronic filing up and running here at the Supreme Court and other appellate courts and then getting it mandated around the state. In order to make that work, we needed to make the judges happy. I set about trying to put a guide together that would help lawyers create electronic briefs that would answer some of the complaints that we heard from judges about, “I don’t have my tabs anymore,” “It’s hard to navigate,” issues like that. We set out in the guide how you can use bookmarks to help them navigate the brief from beginning to end, with pictures and diagrams to help you create better electronic appellate briefs.

The image of you with the mailbag stamping extension requests from the old days brings up a point. We’re lucky in Texas because of your efforts and a lot of other people’s efforts. Our court system is at the forefront of technology. You’ve made a lot of steps in terms of making filing, motions, and all that far more efficient and more accessible for everybody from pro ses on. Can you talk about some of the things that have changed in the last few years and the efforts that the court has undertaken to bring efiling into existence in Texas? 

When I started, the thinking here at the Supreme Court was that electronic filing would go the way it did in the federal courts. As you know, electronic filing started with the trial courts in the federal courts. We had an electronic filing. It wasn’t mandatory though. It was purely voluntary. We had a system, but with very little adoption of it around the state. The thinking was that if you build it, they will come. If it’s better than filing on paper, people will adopt it voluntarily and we won’t need to do anything and it will prove itself. I saw quickly that wasn’t going to work. And I felt like the Supreme Court needed to take a leadership role and that they needed to be the ones showing everybody else how this could be done. A frequent criticism I heard was, “Well, the Supreme Court’s not doing it. If it’s so great, why don’t you do it?” So we did, and we started mandatory electronic filing here. Not long after that, we added it in the appellate courts, and then we mandated it for all the courts in the state on the civil side. And we just had the last court come online for criminal efiling in Texas. So now we have mandatory efiling for both civil and criminal cases in all of our state courts.

So all 254 counties now?

It’s a big job. We have a lot of counties in Texas, and they have vastly different resources, but we’ve made it happen.

I know you’re involved with the Judicial Committee on Information Technology. I have the privilege of being on that committee with you and participating in some lively discussions. For those who don’t know, it’s a committee that’s created by the Texas Supreme Court. The voting membership is appointed by the Chief Justice, but there are a lot of representatives from clerk’s offices, including district and county clerks. The Office of Court Administration people generally are very involved in that. Did JCIT have a big role in helping to roll out the mandatory filing process? 

TALP 3 | Streamline The Appellate Process

Streamline the Appellate Process: The Standards of Appellate Conduct say that your client doesn’t have the right to tell you not to agree to an extension request.

 

It did. I would point to one person, in particular, Rebecca Simmons, who was a justice on the Fourth Court of Appeals when she took over as the head of the Judicial Committee on Information Technology. That was at about the same time that we made this change in strategy in terms of trying to mandate efiling in Texas. She helped take the lead on that. We had a hearing in the Supreme Court courtroom that was a public hearing where we invited clerks, judges, and lawyers from around the state to come in and talk about whether we should mandate electronic filing. At the end of that hearing, the Court went back and talked about it and decided to mandate electronic filing.

Prior to that, in all of these JCIT meetings that I had been to, people said “The Supreme Court will never mandate electronic filing.” I credit Justice Simmons for being willing to ask the Supreme Court to do that because they weren’t willing to even ask before that. JCIT sets the standards for electronic filing in Texas. It is a group of lawyers like yourself, clerks like me, judges, and some tech people even from some law firms. It’s just a very diverse group of people from different roles in the judiciary. We get in there and we hash out all these changes to the electronic filing system and talk about people’s ideas for improving the system and try to move things forward and create a more uniform system for everybody.

Can you tell us a little about the latest project or two that JCIT is working on? What can efilers expect coming up? 

One of my favorites is something that I suggested a few years ago, which is that we have an automated certificate of service. The system attaches at the end of your document a certificate of service that lists everyone that was served with the document. One of the reasons I suggested that is that we would sometimes see people certify that they had served everyone and come to find out that they hadn’t served anybody. We’ve launched this automated certificate of service as a beta test here at the Supreme Court, and the Fourth Court has joined in and so has the First and the Fourteenth. I think that Travis County is going to join, and so is the Court of Criminal Appeals. Also, the Seventh Court of Appeals as well. Chief Quinn volunteered to do that also.

We’re beta testing this, and we have had instances in which people have certified that they served everyone and then you look at the automated certificate and no one’s listed. It still happens. It’s a mistake that people make, but I don’t think it’s intentional. This is another thing that we could eliminate, make things easier for everyone, and provide better proof for lawyers and judges so that they can see who was actually served, what address they were served at, what time they were served, the date they were served, and all that information.

One of the things we’re hoping to do with it is to add a hyperlink to it, which will take you to the efiling page that shows you whether or not that envelope was opened, so that you in the future will be able to tell if someone opened the document. So if you’re in court and your opponent is saying, “I never got it,” then you’ll be able to have the judge click on it and say, “Well, you actually opened it on this date.” That’s one of the things that’s coming up.

As someone who used to have to carry around big paper reporters’ and clerks’ records in my briefcase, thank you for going to all the electronic filing and records. Nowadays, it used to be that the Supreme Court would wait and then order the record once it was starting to look at a case, but that’s not the case any longer, is it? 

It’s not. Because we have electronic records, one of the things we’re able to do when we create a case now is to automatically import the record from the court of appeals. We use the attorney portal, which is the same place that attorneys can go to see their record at the court of appeals and also for the Supreme Court. If you don’t know about that, you should. You used to have to go down to the courthouse and check the record out or sit there in the clerk’s office for a while or wait for the CD to come in the mail. Now, you just online and you see the record.

One of the great things about it is you’ve got more assurance that the record you’re looking at is the record that the court’s looking at because you’re all looking at the same thing. We import the record automatically as soon as we open the case, which could be when a motion for extension of time is filed or when the petition is filed. That record will be there from the beginning of the case. Todd, you asked what some of the improvements coming down the pike are. One of the things that I hope is going to happen in terms of records is that we’re going to move away from a system in which you have to designate the record, that you’ve got to tell the court, “Here are the things that I think need to be in the record.”

New electronic processes in Texas courts make things much easier for everyone. Click To Tweet

We’ve launched a state-wide database for electronically filed documents called re:SearchTX. One of the things missing from it at the moment is the orders from the trial court because it’s just capturing the electronically filed documents. But in some counties like Collin County, Denton County, and Dallas County, they’re integrating their case management systems with re:SearchTX, which is reaching out into their case management systems and pulling in the orders as well. If we can get to that point where every trial court has all their documents in re:SearchTX, then we can get to the point where the record is just there and you’ve got the easy button for appeals. You’re pushing that one button, “I want to appeal.” The record is all there, like when we start a case here, we’re just importing the docket information from the court of appeals. We could do that as well at the court of appeals and greatly speed up the process and the ease with which you’re able to file your appeal.

Another one of my pet peeves, for anybody who’s interested, is the cost of getting a clerk’s record. We see clerks around the state still charging $1 a page or so, even though a 1,000-page clerk’s record isn’t what it used to be. You had to go and copy every one of those pages physically and you could probably justify charging $1 a page doing that. Now, it seems like it’s mostly just a few mouse clicks, but yet the cost hasn’t changed.

I hope what you’re describing happens because we don’t need there to be any judgment calls about what goes in the record. It should be “the record” like it is in federal court. My hope would be that that would make courts more accessible to people who have a difficult time not only coming up with the money to pay a lawyer to handle an appeal for them, but just to pay for the record. It seems like that would be a really positive step toward making that happen. I know that we have some of the clerk’s offices, the response to that is, “We depend on some of that revenue.” We have a system that would need to be adjusted somehow. I don’t know the answer to how that would work, but I find it would be encouraging to be able to look at re:SearchTX as the source of the record.

For me, what I’m using to look at documents, I might look some days at the AARO system here in Travis County because I can pull everything off of that. If I look at re:SearchTX, your point is well taken, the orders aren’t going to be there. To have one unified system to look at, to be able to gather any document that’s been filed in the case and have it been free or low cost. I know re:SearchTX is low cost for non-parties, but free for counsel of record. It’s a tremendous advancement we’re looking at achieving. Great job with putting that together. 

That’s one thing where we are lagging behind the federal courts, and it’s tough here in Texas because we have 254 counties. We’ve got elected clerks at both the district and the county court level. We’ve also got this funding model where a lot of the money that they use comes from fees, so they do have to look elsewhere to find the funds that they need if we’re not going to let them charge a dollar a page for records like that. You’re preaching to the choir when it comes to that because, as you know, in our appellate court system, everything’s there. It’s open, available, and it’s free. I’ve never been a fan of the PACER fees or the funding model for that. The thing about it to me that makes that model incorrect is that we save so much money through electronic filing.

I remember we were discussing here whether we were going to require paper copies and some judges said, “We’re going to have to print so much. We’re going to spend all those money printing things.” I sat down with our accountant and looked at how much we spent storing paper. I found that in terms of what we had to pay the state archives to store our records and the supplies we had to have to store our records, and the personnel we had to have in order to file all those things, that we would save money even if we printed four times as much as we were printing. There’s a huge cost savings. I hear this again and again from clerks, they talk about, “Electronic filing is great. I’m saving all this money. I’ve been able to give people the raises because of all the money that I’ve saved.” Somehow that gets lost in the discussion about how much we’re charging for things and it shouldn’t because there’s such a huge cost saving to the courts. The fee structure that was put in place was meant to defer those expenses that people were incurring when you had to have a person running the copy machine, buy the copiers or lease them and buy all the paper. Now, it doesn’t cost us anything to provide the copies and the taxpayers paid already for our case management systems.

In my practice situation, having been in a small firm for 14 years, electronic filing and the way I’m able to manage files now compared to even when I started my firm, night and day difference. You and the Court are to commended for taking the initiative to make sure that we can get these documents, we file them electronically, we don’t have to touch the document, we don’t have to have a runner do anything and pick anything up. Heaven forbid we have to get briefs copied and delivered to the court or dropped in the mail by whatever the mailbox cutoff was. I’ve been around long enough to where I remember those days of my post office runs. We are in so much better a situation than we were certainly when I started practicing. It’s been a sea change. I think the appellate lawyers in the state, and trial lawyers too, should be grateful for all the work that’s gone into this. 

Sometimes they’re not. There is a lot of grinding of teeth and I understand it. There’s a lack of uniformity with some of the practices, especially in the trial courts, about lead documents and things like that. In some ways, those differences in local practices have been amplified by the fact that we have electronic filing. I don’t know what it is, whether attorneys are now able to practice in more counties, and so they’re more exposed to the differences in our counties and it drives them crazy. I understand that. We’re trying to do our best to make things more uniform.

What I find though is that a lot of people confuse the differences in practices and the people with electronic filing and they want to blame electronic filing for the lack of uniformity. I’m constantly telling people, “It’s not the system, it’s the people.” One of the things we do again in JCIT is trying to get everybody on board and get them all working the same way. It’s tough when everybody’s an elected official and they run their own fiefdom. We don’t have an electronic filing cop. Maybe someday I’ll retire and I’ll do that job, but sometimes we could use one. Somebody just telling people like, “You can’t do that, you can’t do this.” The Court is reluctant to dive into those things and get down into the weeds about some of those local practices.

TALP 3 | Streamline The Appellate Process

Streamline the Appellate Process: Coordinating the electronic-filing system and creating uniform practices among Texas’s 254 counties is a monumental job.

 

Blake, we appreciate you being here and being accessible both on this show and in general. We’ll throw a Twitter shout-out for you. It’s @BlakeAHawthorne. You have all kinds of practical tips, court resources, and things you put out there on a regular basis. Anyone that practices in any of the appellate courts in Texas needs to follow Blake and pay attention to what he has.

I want to congratulate you guys on doing this. It coalesced around some tweets we exchanged. You guys have been talking about doing this for a while, so I’m glad you did it and you came to the Supreme Court to do it. It’s been a pleasure.

Thanks for having us. I think that our audience is going to want to learn from you more. We hope that you’ll come back again and talk with us some more another time.

I’d love to, anytime.

Thank you, Blake. Thanks for joining us.

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