It seems everything can be done over the internet nowadays. With the global pandemic and quarantine protocols, more and more people have relied on the world wide web when working from home. But a major threat has hindered those trying to practice appellate law recently — ransomware. On today’s show, Todd Smith and Jody Sanders talk about the recent ransomware attack on the Texas appellate court websites and how it’s affecting their practices. Don’t let the dangers of malware cripple you or your firm. Listen to this episode to learn what the courts are doing to combat the ransomware attack and keep things going.
Listen to the podcast here:
The Second-Wave Virus: Ransomware Attack on the Courts
We’re going to get back to our origins and go without a guest. The only time we’ve ever done this up to now is in our very first episode. It seems ages ago, Jody. We sat in the Texas Supreme Court courtroom and recorded our very first episode, live and in person.
It’s hard to believe that was early March 2020 and how much the world has changed since then. I’ve barely left my house since then honestly.
It’s the same here. I ventured out to run a couple of errands and it felt like I was coming back from an extended vacation or something. The landmarks didn’t look the same. It was a very strange experience. What we thought we might do for the audience is we’ve had some developments going on that are worthy of some conversation that doesn’t necessarily require a special guest. We’ve troubled Blake Hawthorne twice already to be on the show. He would be a logical guest to have on for an episode like this but we’re going to have a conversation between the two of us primarily about the ransomware attack on the Supreme Court and Court of Appeals websites. How that’s affecting our practices, things to think about and things we’ve observed. Before we do that, I want to mention a couple of housekeeping items about the show itself.
We’re in the process of completing a change in our web hosts and the company that we’re using is working with our web developer and is putting out a nice-looking website that features our guests, in addition to links to a podcast player. A nice transcription of the episode so people can get on that site. We’re still at TexAppLawPod.com. The back episodes are being built out and added periodically. We’ve got our two episodes up now. This one will be on the site when it goes live and is published. It adds a nice element, the design of the site and linking to social media contact information for guests and it has a podcast player right there on the webpage. We’re pleased with how that’s going so far and we’re also happy to report, Jody, I’ll update you with our latest number. We’re looking at more than 1,500 total plays for all episodes so far. For our fledgling little podcast with two boys to sit around and talk about appellate law, that’s not bad.
That’s exactly right, and outside of my extended family, that means more people that are listening and the people who have to because they related to me. That’s great. Thank you all so much out there for listening and continuing to listen. We appreciate it.
It has been great. I’ve enjoyed doing this with you too. I’ve learned a lot as we’ve gone. We’re going strong and we’re going to continue to do this and put out an episode every week for the foreseeable future. We’re onto something here so I’m super happy with how it’s going. One other thing to mention here is we have been blessed with sponsorship by a couple of entities that a lot of our audience will have heard of. One is Thomson Reuters, who as most folks know is the owner of WestlawNext. The research database platform that a good number of people who do what we do use. I am a WestlawNext user myself. I use it every day in my practice and couldn’t get by without it.
I’ve spent more time now with WestlawNext than I have with anyone else in my house. I’ve done a lot of researching and updating specifically on that platform.
It is useful and we’re not going to put our sponsors in our reader’s faces a lot, but there may be opportunities to hear from our sponsors about different things that they do that benefits folks
in our practice area. Certainly, WestlawNext is one of those that would benefit our audience to hear more about. The second sponsor that I wanted to mention at the outset is Court Surety Bond Agency or CSBA. Most appellate lawyers have to deal with supersedeas bonds in their practices and CSBA is a leader in that industry. They’re based in California but most folks here in Texas have heard of them. They are fairly regular fixtures at the statewide appellate seminars and they do a good job of reaching out to appellate lawyers and letting us know what they do and how we can benefit from their services. We’re looking forward to enjoying a partnership with them as well as Thomson Reuters to help bring the show to you.
We’ve worked on that and that’s going to allow us to change our production. You’ve heard about the website. Our production companies are changing the way our episodes are being edited and produced too. We’re thankful for their generosity and willingness to support us this way. We’re excited that we’re going to get more great content out to you all because of it.
Thanks again to Thomson Reuters and CSBA, and you’ll be hearing more about them as we move along. The hot topic, Jody, is the ransomware attack on the Texas Supreme Court and Court of Appeals websites. We could talk for way longer than 30 minutes on that topic, but I figured we would chat about that. As I mentioned at the outset, I will tell you, I knew I use TAMES a lot in my practice to access information over the internet through the court dockets and so forth but I felt paralyzed in the last few weeks. What about you?
If I were going to pick a playlist for the ransomware, I think I’d pick, You Picked A Fine Time to Leave Me, Lucille, by Kenny Rogers and Don’t Know What You’ve Got (‘Til It’s Gone) by Cinderella. I’ve bragged and bragged for the first two months of quarantine that I could do whatever I wanted to do from home. It’s great and everything is accessible, and TAMES went down and it turns out that I feel about 50% of what I do somehow involves TAMES on a daily basis. I’ll go to log in to do something and then that doesn’t work and I have to remember it.
I was in the same boat. I am on the sites all the time. I’m downloading records from the attorney portal, which is tied into that system, case mail is related to that system. The regular opinions and orders list coming out of all the courts, not just from the Supreme Court. It’s a habit for me when I sit down at my computer in the morning. One of the first things I do is check and see what the Third Court of Appeals is doing that day. I’m not ashamed to say I felt discombobulated.
Thankfully, they’ve started pushing out some of the orders from the courts on the new TXCourts.net site. One of my favorite things to do has been to go to the court that released on Thursdays and then on Fridays to go to the courts and release there. I clicked through the opinions were coming out, who the counsel was and look at the briefing and see what the issues were. I miss that as much as that says about me, unfortunately.
It says that you’re a dedicated appellate lawyer because that sounds completely normal.
I feel that way and my coworkers feel that way but for other people, it sounds weird but I think the audience will sympathize with that.
If anyone is reading who doesn’t know, on May the 8th that morning, the TXCourts.gov site, which the OCA created these sites for all the Texas Appellate Courts, got attacked by a ransomware virus. I’ve heard it called the second wave virus because we’ve been dealing with enough of a hardship with the Coronavirus situation and now this hits. This was the day that we recorded the episode with David Slayton that this happened. We didn’t know other than the fact that the sites were down and that we didn’t get Supreme Court orders on Friday the same way that we usually would. What was going on? All we knew that the sites were down. Within a couple of days, OCA issued a release saying, “We got hit with a ransomware. We’re not paying the ransom. We haven’t lost any data.”
That’s been the big saving grace in all this as everyone should be assured that all the courts are saying that there has been no data loss in all of this. In fact, the sites are starting to come back up. I received some notifications from the Third Court site doing things like giving me the files that copies of my motions that were filed back around the 12th or 13th. The ruling also on some extension requests related to those same filing. Everyone should be assured that the court sites are backed up in addition to what OCA was doing. The Supreme Court Clerk’s Office had some internal backups there and that’s one of the ways that the TXCourts.net site was created was by restoring some data that was already available.
That site has been useful because you can at least get some of the orders that are coming out of the courts. You can get the opinions that are coming out piece-by-piece. They’re starting to trickle in from almost all the courts, it looks like. The Fifth Court has its own backup site. The old CourtStuff.com site that was around forever before they fully standardized onto the TAMES system. There are still ways to access that stuff now and it seems it’s all getting a little bit more standardized.
You mentioned Court Stuff. It brought back memories for me to see that URL being used because I started my career as a younger lawyer in Dallas and that was pre-TAMES. The Fifth Court of Appeals in Dallas was ahead of its time in getting that site prepared and posting orders and everything. It was a precursor of sorts to TAMES and our system. Honestly, a funny part of this is the Fifth Court reluctantly gave way to TAMES because it had a strong following and was used to the way it did things. The Supreme Court said mandatory eFiling means to use our system. Everything is up until now has gone swimmingly with that.
The things that have been more difficult is once you get used to getting the automated case mail in all the cases where you get your notifications of things that were filed of rulings from the court and all that. I miss it because you file something and you may or may not get the actual file-stamped copy. If you can get your file-stamped copy, you get your notices, and you haven’t gotten those. It’s been a little bit hard to push something out there and hope that it lands or get a notice from the court, not know what’s out there. When you’re used to getting instantaneous notices, it does make it hard to not.
I was used to getting confirmation of my submission, which still has been happening. Thankfully, this did not affect the eFile Texas, but then most of the courts were good about turning around your filings reasonably quickly if not within an hour or even two and certainly the next business day especially if it was a late afternoon filing. Suddenly, my initial take on all this was the intermediate appellate courts had become black holes. I was submitting things, but nothing was coming out. I felt a little guilty for using that terminology a little bit later because I didn’t mean to imply that the courts weren’t doing work. They were as paralyzed as we were. From everything that I’ve heard, the justices didn’t have access to TAMES either. The only thing they had available to them documented that they already had pulled down in some other fashion. It’s been an extreme challenge for the courts to put out any meaningful work over this time.
The Supreme Court set up a whole alternative system relying largely on, not only this TXCourts.net site, we’ve heard even more than usual from Blake Hawthorne and the Supreme Court Twitter account aside from Blake’s personal Twitter account. One thing that Blake pointed out early on was that documents that were submitted over the eFiling system are automatically loaded into the re:SearchTX system. In theory, if documents are submitted, one should be able to pull up the docket for that case on re:SearchTX and have everything there available. The Supreme Court has done pretty well with keeping things moving. I don’t think that courts missed too much of a beat that we’re having a much bigger challenge with the Intermediate Courts of Appeals, I’m afraid.
It’s a lot harder for them because they don’t have the same docket that the Supreme Court does either. Many of them are original proceedings, accelerated proceedings, in addition to the regular steady flow of cases that they can’t say on. I can only imagine the surge of things that have hit them in addition to all this plus a lot of them were doing remote work anyway and trying to transition to that, which is already a whole other challenge.There is no denying that handling court proceedings over Zoom creates an efficiency that ought to take root. Click To Tweet
The Supreme Court has no criminal jurisdiction and discretionary jurisdiction and although its cases come from 1,400 intermediate courts, we look at the docket numbers in the Supreme Court. Usually, on any given year there are about 100 or 120 matters filed of all kinds. The courts of appeals, the volume in those courts is much different plus they’re getting all the civil cases but also all the criminal cases too. That is a much different level of activity in the clerk’s offices. With TAMES being down and nothing coming in, you’re seeing an unreal backlog of stuff happening. The courts have started to come through it. As I understand it, the TXCourts.gov sites have started to be rebuilt. Some limited version of them is available online. It consists largely of backup data. I don’t know that anything new is been added yet, but it’s at least going back to the point where those sites were backed up. David Slayton’s people are working round the clock to get the information up-to-date and it’s going to take a while for this process to play out.
I know a couple of attorneys who had oral argument scheduled that got canceled because the courts simply couldn’t get to the materials they needed to prepare. One of those things that you don’t think about, even though the website is down, you think you’d be able to have oral argument but if the court can’t get to all the things they need, then it’s not going to be helpful to anybody.
In the face of Coronavirus, all the courts were doing a good job of pivoting and scheduling oral argument through Zoom. The Supreme Court got a lot of attention on a national basis for getting Zoom arguments kicked off. I had one on the voting by mail issue. It was able to move forward with that because it had this other system in place where it could communicate with the lawyers. My understanding is that they’re working out the kinks well so that the Zoom arguments are going smoothly. There are no technical difficulties like what David Slayton told us about when he was on the show.
It seems like it and I’ve watched some at the Supreme Court and I’ve watched a couple of the intermediate courts and they seem they all go off well. I know there’s a lot of behind the scenes work that gets into that but from the viewer’s perspective, watching it on the YouTube channel, they go off seamlessly.
It is interesting that around the time the courts get up and running on Zoom. They’re having their conferences over Zoom, they’re starting to have oral arguments over Zoom and then the ransomware hits and it’s a whole another level of paralysis. I know how hard that all those folks have been working and OCA has been going crazy trying to get this resolved. The folks in the Supreme Court and other clerk’s offices are doing their very best. We’re in good hands. This would have been a disaster had there been a data loss. One thing I was reminded of was that the Supreme Court backed twenty years or so and input old data online, old court orders, and things. I don’t know if those documents still exist. It could have been tragic but our people planned ahead and executed the plan. We’re not in any danger of losing information. What we’re dealing with is sadly more of an inconvenience than anything.
It’s one of those things that feels that much more acute now that we’re all doing stay-at-home orders for Coronavirus. If I run the office, it wouldn’t seem quite as extreme as it does when this is the only thing that you do during the day from your computer at home.
One question I threw out to Twitter as we were in this black hole situation and the documents weren’t as freely available for those coming out of the Intermediate Courts of Appeals as they have been for the Supreme Court. The thought formed in my mind that maybe there needs to be some a blanket order of extending some deadlines. I was having an issue getting a reporter’s record in a case where I’ve got a filing deadline. It’s a time-sensitive set deadline that the 14th Court set for me for 4:00 PM tomorrow and I couldn’t get on the Attorney Portal to download the record even though the court reporter supposedly filed it.
I wasn’t getting it despite several requests from my opposing counsel. It turns out later that the third layer of the problem was my virus scanner or my incoming email software was a little hyper-aggressive and blocked the opposing counsel’s effort to send this stuff to me. Fortunately, I didn’t accuse him of anything nefarious. That was when I realized how dependent I am on these systems being up and running with 99.9% uptime or whatever they are. I was sitting around, I couldn’t get my hands on this record no matter what I did and now I’m scrambling a little bit to get this response in it.
We all depend on technology and when it goes down, it’s a big deal. I don’t know what the source of the ransomware attack was. If it was someone who clicked on something that they shouldn’t have, that’s the classic MO I think. I’m certainly not pointing any fingers. This kind of thing is going to happen. I understand that now, too. There’s been another attack on DPS. I don’t know if you’ve heard about that, Jody.
There’s some other government agency. I don’t remember what it was, but you’re right.
The bad guys are trying to exploit the situation that we’re all in.
Don’t click on any unknown podcast emails. We don’t want our new website to get locked up.
We don’t spam our audience either.
That’s true. We try not to.
The point I was coming to on the blanket orders was we’re now starting to see some blanket orders coming out of the Intermediate Courts of Appeals. The First and Fourteenth granted a blanket extension for every case in which there is an appellate briefing deadline, ordinary appeals, not child custody, not juvenile and 1 or 2 other exceptions. There’s been a perception that this is a significant enough issue that some of these courts are taking it upon themselves to issue these blanket orders and help practitioners out who you might’ve been in a similar situation to what I was experiencing of not being able to download an appellate record and started brief, for example. What we’ve got on those is the First and Fourteenth Courts in Houston, the Sixth Court in Texarkana, and the Eleventh in Eastland. I thought that we’d seen them from all the courts, but the indications are now that it may not be happening.
It may be that they’re handling it on an as-needed basis.
I think you could make the case either way. It’d be nice if all the courts were handling it the same as when the Supreme Court first issued the emergency orders that said the trial judges may extend limitations. There was a little bit of a backlash about that of people saying, “Where my case is shouldn’t determine what my statute of limitations is.” Fix that and I don’t know that that’s going to happen here because being at appellate courts, this is a little different situation. You have longer-term deadlines and one thing that’s being said, it may not be necessary even though it’s nice to have these blanket orders. In defense of those courts that haven’t put one out yet and may not, it may not be necessary. The courts are saying extensions are going to be freely granted. If anyone has a situation where they need an extension, the remedy is still there. It’s not like you’re going to be out of luck.
That’s been my experience since we started the whole stay-at-home thing. These courts have been very forgiving on extensions and very understanding. Number one by the issues that are imposed by having to work from home for so many people. If anything, this will make them even a little bit more liberal with what was already a pretty easy process. The standards of pellet conduct already require agreement without any real good reason to oppose it. There’s not a whole lot of good reasons out there in a regular civil appeal anyway.
I can’t think of one. I am loathed to ever or even consider opposing an extension, but right now I couldn’t imagine a situation in which I would oppose one.
It has to be real prejudice to your client for some reason.
We’ve talked a little about how these events have led to some technological change in practice. What I thought I might ask you about is what questions does this situation raise? How do we think it’s going to affect our practices in the future? Is that something you’ve had any chance to think about?
One thing that’s going to come from all this is it’s going to make the overall practice more efficient. This is going to make the practice of law a lot more efficient. We both recognize how lucky we were in Texas with the technological stuff that we had like TAMES, eFiling, and the attorney portal. This underscores how great that is and how much better equipped Texas lawyers are because of it and the emphasis on that type of stuff is going to continue. The Zoom trial proceedings and Zoom oral arguments, I’m certain that they’re not going to replace old fashioned court and old-fashioned oral arguments. In a lot of cases, they’re going to be here to stay.
In particular judges in small towns and more remote areas, they appreciate being able to have advocates from all over. Frankly, they haven’t talked about it too much. It’s an access to justice issue. It’s going to solve hopefully a lot of access to justice problems that are state head. We have so many rural and smaller communities that are underserved by lawyers and by allowing remote hearings and electronic proceedings as we’ve had, it allows some attorneys from throughout the state to serve those communities in ways that they couldn’t before.If all of our intermediate courts would record arguments and make them available, that would be a big plus. Click To Tweet
What I would see come out of this are some things we’ve touched upon in prior episodes. If you’ve got to go somewhere for a 15 or 30-minute hearing and you have to travel for half a day or stay overnight, this ties into the access to justice issue because it has to do with how expensive legal services are. If I’m going to travel to some remote location in West Texas, I’ve got to be compensated for the time that I’m spending doing that and the client’s got to pay the expense. The hearing might take 15 or 30 minutes or an hour. There is no denying that over Zoom is way more efficient and it creates an efficiency that ought to take root. I’m trying to think of a good reason for opposing in that situation allowing Zoom hearings to continue. The judges in those more remote locations, I can’t speak for them, but if I were them, I would be inclined to want to keep that because you could be so much more efficient in the running of your docket, I would think.
There are some situations where witness credibility may be an issue or you’ve got evidentiary stuff that needs to be in person. There are plenty of reasons you can come up with why it might not work but you’re right. Make it the general understanding that the court is encouraging of remote proceedings when available and applicable and you’re going to find a lot of attorneys take advantage of that.
There’s a greater sheer number of hearings that take place in trial courts across the state. I don’t know that remote oral arguments are going to take hold long-term for appellate matters unless there’s some extenuating circumstance. It’s interesting and it will be interesting to watch. One thing I would like to see though, even if remote arguments don’t take hold. We’ve got a handful of intermediate courts here in our state that record arguments. When those recordings are available to the advocates, it is a big benefit. The Third Court publishes the audio within a day or so of the argument. It’s beneficial to my client to be able to hear the argument if they couldn’t make it live.
I think about all the times you’ve told in response to a question or the judge, with the court’s permission, we’ll submit a supplemental brief on that question in follow-up to your question. If you’re the only person at the lectern, my brain works 100 miles an hour when I’m in an oral argument. It’s easier to get the details if you can go back and refer to your recording and listen to the nuance of the question and try to figure out what’s being asked. If we can pipe in the video even if we don’t stick with video, it would be nice. Another access to justice, if all of our intermediate courts would record arguments and make them available that would be a big plus. It’s not necessarily related to Coronavirus or ransomware but that’s one of the things that’s on my technological question wish list.
To your point earlier in a different context, the intermediate courts are a little bit of a black hole for the general public. They don’t know what they do or what they are. If you have those videos available where you can see what an oral argument is, it goes a long way toward educating the public about what the system is about because 9.5 out of 10 people couldn’t tell you who’s on the Texas Supreme Court. Below that, 999 out of 1,000 couldn’t tell you who’s on the intermediate court or where they are even located.
We see that with the Texas Supreme Court arguments that have been now broadcast live, webcast, recorded, and made available later for many years. That is a giant advantage for anyone to be able to look at an oral argument that takes place in the Texas Supreme Court. I’d like to think that we could get that level even of technological service into our intermediate courts, but there are budgetary reasons why it hasn’t happened and our budget’s going to be tighter than ever going forward now. The technology also has gotten a lot cheaper. I would sure love to see that happen. If anyone ever puts me in charge and uses me on an unlimited budget that would be something I’d love to see.
It’s interesting with TAMES being down, all the things that I realized that I do in cases. A lot of times if I find a case that I’m researching on Westlaw from an intermediate court, sometimes I’ll use it to check the subsequent history because you can’t tell from Westlaw and a fairly case if anything’s been done. Also, going in a case that’s similar to mine and rereading the briefs and see what they presented. That makes a big difference to be able to see what they put in to look for the names of counsel who argued, look for potential amicus support from other cases. You can do a lot of cross-work on TAMES that presents a lot of value and not having access to that has got frustrating because you do miss that. That’s a great technological advantage we have.
When TXCourts.gov started coming back and I was able to see the third court of appeals website, I had this tinge of real appreciation for what we had. What’s sad about it is you and I know all about this stuff because we’re in it day-in-day-out. There’s a lot of Texas practitioners who don’t understand and don’t know all these resources that are available to them like the attorney portal for example and case mail. Things that to me are appellate lawyer 101 topics, they’re must-haves. Because of the coronavirus situation, if they’ve had appeals and they’ve been forced to be online more and educate themselves more, that’s a potential upside to all this very strange situation that we’ve been in. Having cases available online and having as much information available online as possible in our age is critical. We have commended OCA and the Supreme Court many times in our discussions on the show and our episodes so far but I think their role has become highlighted as even more important and we could have imagined because we haven’t had this information.
The fact that it’s out there, you realize how much legitimacy it lends both to the judiciary and then to all of us and the jobs that we do because people can have transparency with what we do. “I’m filing a brief.” “What does that mean?” “Here’s the link. Go look at it. You can see what I’ve done.” People who are law students who are studying and go and look, “These people seem they know what they’re talking about.”
I wanted each one of us to perhaps offer a tip since we typically ask our guests to offer a tip. I’ve got one and it may overlap with yours because it’s topical. It’s what we’re talking about. The tip that I would offer is to visit that TXCourts.net site. The court websites are coming back, but we don’t know exactly when they’re going to be back in full force. If you’ve got a case where you think you’ve got a clock ticking on an appellate deadline, TXcourts.gov/orders is the place to go because those orders that we spoke about earlier from the First and Fourteenth are posted there and from the Sixth and the Eleventh is posted there but there is a space for all of the fourteen intermediate appellate courts there.
As the sites come back online, I’m sure that each one of them will post their blanket order prominently on their homepages. In the meantime, this is the place to go to figure out if you’ve got a blanket order in place that affects your case. What that will tell you is whether you’ve got an automatic extension of time to follow a brief or if you’re opposing counsel will and you can adjust your own briefing schedule accordingly. In addition to the actual opinions that are released on the TXCourts.net/opinions, TXCourts.net/orders is a critical site for our audience to be watching if they’ve got appellate matters pending in Texas.
In a similar vein, I’ll give my tip for the Supreme Court. If you are looking for data on Supreme Court cases and you still can’t get to the TX Court sites. Don Cruz has a great resource at SEOTX. He tracks trends, the data, he has information on what cases are pending and at the briefing stage. It’s helpful if you’re trying to find out what’s going on with the court right now or frankly even afterward because it lets you search the data in a way that the Supreme Court’s website doesn’t. You can certainly find individual cases there, but you can’t look at it in the way that Don does it. That’s another great resource if you’re looking to learn about what’s going on with the Texas Supreme Court overall or in specific cases.Having as much information available online as possible in our age is critical. Click To Tweet
Don does a great job. He’s programmed all that stuff where it pulls data out. I believe it pulls it from TAMES but he had all that stuff that had been pulled out and it wasn’t affected immediately by the ransomware attack. Some of the information that was available on his site, you couldn’t access anywhere else. That was a real plus. Before we go, I want to thank our sponsors. Thomson Reuters who brings to you Westlaw and a lot of other very practical online databases that appellate lawyers use on a regular basis and CSBA, Court Surety Bond Agency. We’re glad to have these two companies in partnership with us and we look forward to a long relationship in the future.
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