The Lawyers Weekly
Vol. 24, No. 9
July 2, 2004

EDMONTON

This fall the Alberta Court of Appeal will adopt a practice of mandating electronic filing of some appeals. While the court has accepted electronic appeal books since the fall of 1994, proceeding electronically will now be mandatory for appeals where the trial was at least 10 days and optional for other appeals.

The new practice is the product of one of three subcommittees of the Total Electronic Appeal Committee, established in 1993 as the Electronic Transcript Committee and recently disbanded. The committee was made up of lawyers and judges from all three levels of court. The court began to look at the issue of e-appeals in 1998, following a decision in California where a lawyer was refused leave to file a brief on CD-Rom. The court then ran a formal pilot project involving about six appeals. Several other e-appeals have taken place with leave of the court.

About 70 Alberta lawyers got a head start on the new program at a Legal Education Society of Alberta seminar in Calgary on June 2 and Edmonton on June 10. The seminar was co-chaired by the appeal court's Justices Adelle Fruman and Anne Russell.

Justice Russell told attendees in Edmonton that the seminar's purpose was to convince lawyers that use of e-factums is the future of appellate practice. Emphasizing the technological acuity of Alberta's appellate justices, she said she would "encourage and motivate you to adopt and adapt to totally electronic appeals."

The three goals of e-appeals were described as enhanced efficiency, preservation of resources and reduction of the escalating cost of appeals, namely the cost of photocopying.

Justice Russell said the "basic principle" behind the e-appeal is the "use of hyperlinking" among all documents, including factums, appeal books and authorities. All documents ordinarily required to be filed at the court are converted to PDF format or scanned into the law firm's system. They are then burned onto a CD-Rom. At that point, all documents that have been saved digitally become easily accessible to the court and all parties. They also become full text keyword searchable.

Both judges emphasized the increased efficiency brought to bear by operating an appeal in this manner, as counsel and judges are able to find a document "with a mouse click rather than hunting through volumes" of paper.

Justice Fruman demonstrated the utility of the Adobe program, showcasing its pencil, highlighter and note tools. She observed that documents are almost all generated electronically today and are being produced in paper only because courts require it.

Justice Russell emphasized the computer expertise of the judges, noting that electronic practice assists them with drafting part of the written reasons before a hearing, thus reducing delay in their delivery. Justice Fruman concurred, describing the factum as the "primary messenger of your argument" which "endures after the close."

Vaughn Marshall of Calgary's Marshall Attorneys advised those present to "pay attention to what the judges have said about how they make a decision."

Marshall told The Lawyers Weekly that 10 years ago, when the Total Electronic Appeal Committee started its work, the Alberta Court of Appeal was the leading court in North America in terms of technological advances, but it has since lost ground. Through this new project, the court has "the opportunity to make up some of that ground," he said.

"Until lawyers start making demands for technological court services, it's not likely to happen as quickly as we would like."

Kirk Lambrecht of Justice Canada also spoke at the seminar about his experience with an e-appeal heard on April 15. Giving an idea of the costs of conducting an e-appeal, he explained that the cost of the permanent acquisition of seven computer monitors to equip the courtrooms compared favourably with the cost of photocopies for use in a single appeal.

Both Marshall and Lambrecht emphasized that the e-appeal process makes advocacy easier and more effective.

Registrar Lynn Varty explained some details of the upcoming Practice Note that will govern e-appeals. In essence, the factum is to be created in accordance with existing Rules of Court and Practice Directions. Authorities are to be downloaded in HTML format or scanned into a searchable format. Once factum and authorities are prepared, all would be converted to PDF format.

Electronic copies of Part III (the evidence portion of the appeal book) will also be mandatory. Factums and authorities can then be submitted electronically over the web. The registry staff will confirm the status of the e-appeal within two business days, at which time hard copies may be printed and filed. The ultimate goal is to eliminate all hard copies.

The new Practice Note is expected shortly. A detailed instructional manual will be placed on the courts' website and training workshops will be considered for mid-September.