#118: Old-School Virtual Law Practice and E-Brief Best Practices, with Scott Bassett

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Speaker 1: Welcome to The Lawyerist Podcast with Sam Glover and Aaron Street. Each week Lawyerist brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. And now, here are Sam and Aaron.
Sam Glover: Hi I’m Sam Glover.
Aaron Street: And I’m Aaron Street, and this is episode 118 of The Lawyerist Podcast, part of The Legal Talk Network. Today we’re talking with Scott Bassett about going virtual before anyone knew what that meant.
Sam Glover: Today’s podcast is sponsored by Ruby Receptionist and its smart, charming receptionist who are perfect for small firms. Visit callruby.com/lawyerist to get a risk-free trial with Ruby.
Aaron Street: Today’s podcast is sponsored by Spotlight Branding, which wants you to know that having a new website designed for your law firm doesn’t have to suck. Spotlight Branding prides itself on great communication, meeting deadlines, and getting results. Text the word website to 66866 in order to receive a free website appraisal worksheet.
Sam Glover: Today’s podcast is sponsored by Freshbooks, which is ridiculously easy to use and packed with powerful features. Try it now at freshbooks.com/lawyerist and enter Lawyerist in the how did you hear about us section.
Aaron Street: So I have some exciting news to report from the Avvo Lawyernomics conference in Las Vegas last week.
Sam Glover: Okay what is it?
Aaron Street: Our podcast saves lives.
Sam Glover: I heard you mention this the other day, and you didn’t say anything more about it. I’m just dying to hear, what happened?
Aaron Street: So our friend Paul Wright from Dallas, who has an estate planning firm with his twin brother, came up to me on the first night and said, “Aaron I need you to know that your podcast saved my life.”
Sam Glover: How?
Aaron Street: Apparently his doctor encouraged him to get more cardio in at the gym, and his goal is to do the treadmill for 45 minutes. Our podcast, at least those episodes that reach 45 minutes, help him to motivate himself to stick through the episode to reach his target exercise goal.
Sam Glover: Nice.
Aaron Street: My major takeaway of that is that if we have short episodes, people might die.
Sam Glover: Yeah no, we better stretch a little bit more.
Aaron Street: We can’t have that because Paul is a good guy.
Sam Glover: Well I think the gym is one of the best places to listen to podcasts.
Aaron Street: Yeah. I don’t. I listen in the car, but whatever.
Sam Glover: That’s fantastic. Well I’m glad to hear that we’ve saved someone’s life.
Aaron Street: Thanks for listening Paul.
Sam Glover: Absolutely. That’s awesome. Well in hopes that we will save someone else’s life today, here’s my conversation with Scott Bassett.
Scott Bassett: I’m Scott Bassett. I’m a lawyer, professor, musician, and a technology enthusiast now in my 36th year of law practice.
Sam Glover: Wow. I didn’t know about the musician so let’s start with that.
Scott Bassett: Okay. Well you know like a lot of kids growing up when I grew up, I was into playing rock and roll guitar. I played in a rock band when I was in junior high and high school. We actually opened one night for Bob Seger.
Sam Glover: Nice.
Scott Bassett: Well it wasn’t nice because we only knew like three songs. Two of them were his first two regional hits, Rambling Gambling Man and Heavy Music.
Sam Glover: I suppose he didn’t want you to play his songs when opening for him?
Scott Bassett: Yeah, well we didn’t know that going in, and we played them. This was at an ice rink in Lavonia, Michigan, suburban Detroit. He gave us one of these icy stares as we came back through the boys locker room. We learned our lesson at that point, but these days I’m a jazz bass player. So I’ve switched from guitar to bass, and I’ve got a jazz quartet of all divorce lawyers up in the Detroit area. We play at bar fundraisers, and sometimes judicial reelection campaigns, that kind of thing, charitable things.
Sam Glover: Do you have a clever name?
Scott Bassett: Yes. We are the Bare Assets.
Sam Glover: Nice. So, okay so that’s your musical career. Tell us about your law practice.
Scott Bassett: Well I graduated from University of Michigan law school back in ’81, and went right into family law with a mid sized suburban Detroit firm, 25 lawyers at that time. Then before too long I went back and taught at the University of Michigan law school in the Child Advocacy Law Clinic doing child welfare cases, and working with students. We would go into court and sometimes try termination of parental rights cases, very serious cases with teams of two students under my supervision. I did that for a few years, and then it was to legal aid. I ran legal aid, the civil division, in Detroit for a few years. Then back into private practice doing family law work, which is what I’ve been doing since then. It’s a fascinated area, but now I’m strictly an appellate attorney because I live more than 1,000 miles from the courts I practice in.
Sam Glover: So when did you make that transition? At which I guess we’d call you a virtual lawyer now?
Scott Bassett: Yeah, and I don’t know if it even had a name back then. This was back at the end of 2001. My wife and I decided that we wanted to make a change. I had been trying nothing but contested child custody cases for what seemed life forever, and I was so burned out I was crispy. So I took my wife to a very nice restaurant and fed her a nice steak and lots of wine, and I said hey, “Why don’t we sell everything and move to Florida.” She agreed. So before she sobered up I booked the flights down here, and we came down over, it was over Labor Day weekend in 2001, and found a house, bought it, proceeded to wind things up in Michigan. Put the house for sale up there, and on December 23, 2001, we pulled into our driveway of our new house in Bradenton, Florida.
Sam Glover: So you remain a Michigan licensed practitioner, but you’ve been living in Florida for 16 years.
Scott Bassett: That is true. That’s actually created some issues and some problems, but we can get into that.
Sam Glover: Well I want to get into that because I mean being a virtual lawyer wasn’t a thing in 2001 really, or it was just beginning to be. So I’m curious what that experience was like, and kind of how it looks now versus how it looked then.
Scott Bassett: Yeah, the problems kind of fell into three categories: technology, bar associations, and clients. The technology I guess was maybe the toughest in the beginning, but the easiest to resolve. We didn’t have electronic filing in any of the Michigan courts then. So what that meant is to be an appellate attorney of course you’re producing a lot of paper. Briefs of up to 50 pages, appendices that could be hundreds of pages long, and I had to build in enough time into my work flow to get my briefs done, take everything up to a copy center because I wasn’t going to have a copier of that size, that capability in my house, have everything copied, and then overnight shipped up to the courts in Michigan. So that meant building in two, or three, or four days at the end to take care of all of that.
That was expensive. It was expensive for my clients because they typically paid the freight on that. I could go through $200 or $300 or more copying things, especially Supreme Court filings where they wanted at that time about 28 copies. Then sometimes it would be $200 or $300 to ship all that paper up to the court. It was a nightmare, but somehow I got through it because we finally got e-filing in the Michigan court of appeals sometime around I think 2008. It wasn’t until January of 2015 started accepting e-filing. So that’s a relatively recent occurrence, and I sure am glad that it happened.
Sam Glover: Were you passing all those costs onto clients, or were you just absorbing them as a cost of doing business remotely?
Scott Bassett: I was actually passing those costs along to clients. I think, however, because I teach law practice management I’ve learned a bit, and I wouldn’t do it the same way today. I would set an hourly rate that was sufficient to cover those costs, or I would charge a flat fee sufficient to cover those costs and I would not nickel and dime, or in this case hundreds of dollars, on the clients because I realize clients are sensitive to that. They are relatively less sensitive to charging say $300 an hour instead of $275 an hour to absorb those costs. So that’s the way I would do it today if I still had that problem.
Sam Glover: So a lot of people wonder about how hard it is to make a virtual practice work, if you can make a reasonable salary, and that kind of stuff. So you had a, it’s sounds like a reasonably successful practice when you were in Michigan, how do you think about whether it’s been successful since then?
Scott Bassett: Well it’s successful in the sense that I still like what I’m doing, and I’m able to support my family. Do I make as much money as I did when I was on the ground doing trial court work? The answer is probably no, but that’s not really why I’m in the business. I get a lot of interesting cases. Most family law cases never get to the highest appeal court in a state, and I’ve been lucky enough to have probably seven or eight full appeals in the Michigan Supreme Court that I’ve been able to argue there. There are a lot of family law appellate attorneys who never get any. So I’m thankful to have interesting cases. I have an advantage that a lot of people didn’t have. I spent 22 years on the ground practicing in the trial courts, made a lot of connections. I chaired the state bar family law section in Michigan at the ripe young age of 30. So I knew everybody. I’m a fellow of the American Academy of Matrimonial Lawyers. So as soon as I moved to Florida, people started calling me and said, “Can I send you an appeal?”
Sam Glover: Is that because they don’t want, I mean I’m curious how you get your cases? It hasn’t been my experience that lawyers don’t want to do appeals. Lots of lawyers are thrilled to get to the court of appeals when they have an opportunity. So I’m kind of curious where the appeals come from for you?
Scott Bassett: Well for me nearly all of them do come directly from the trial court attorneys. I get only a couple of cold calls from clients every year. I’m not even sure why I bother to maintain a website, or be on social media because my practice is entirely referrals from trial court lawyers.
Sam Glover: I assume you keep in touch with those trial court lawyers on social media.
Scott Bassett: I do, and the other thing I do is I try to keep my face in front of them. I’m a regular presence in Michigan at CLE presentations. I volunteer to present whenever I can. I attend even when I’m not presenting. I try to get up there whenever I can to meet with lawyers. It’s important, especially the lawyers who are newer, who were not part of the practicing bar more than 15 years ago when I was still up there. So I need to make inroads with those lawyers because many of the lawyers that I grew up with are getting near retirement age, and are no longer referring me cases.
Sam Glover: Well that’s a good point. How much longer do you plan to do this?
Scott Bassett: I actually can’t see myself retiring. There really is no impediment as long as I can think, and type, and get on an airplane to fly up for my oral arguments I can continue doing this. So I don’t really have any desire to quit.
Sam Glover: Very cool. So you said there were a couple of other issues with going virtual over the years. I think you mentioned insurance is one of the other ones?
Scott Bassett: Yeah. That was a real surprise. We got down here at the end of 2001. My malpractice coverage through my former firm lasted through the end of April of 2002, and then I was on my own and I had to start shopping for coverage. I could not find a carrier than understood a virtual practice. They said, okay so what’s your address. I didn’t maintain an office back in Michigan, it was a complete move to Florida. I’d give them my Florida address, and they said okay what state are you licensed in, it must be Florida right? I said no, I’m licensed in Michigan and only Michigan. They said well I don’t know how we could write a policy for someone who lives in Florida, uses a Florida mailing address, but only practices in Michigan. I finally got to the point where I was using my sister-in-law’s address in Michigan as my mailing address for my malpractice policy, but even that arrangement didn’t last very long.
Sam Glover: Was that with their, did they know you were doing that, or did you just decide ah screw it I’m just going to do this and not tell them?
Scott Bassett: I explained that to my insurance broker. I’m not sure how much the broker passed along to the carrier however. They just didn’t understand the concept of a virtual practice, living in one state and practicing in another. I always thought that was odd because I’ve handled appellate cases that came from, for example Menominee, Michigan, and Marinette, Wisconsin is right across the river. There were lawyers who practiced in Menominee, but lived in Marinette. They would have had the same issue, so I’m not sure why …
Sam Glover: Maybe they just didn’t tell their insurance carriers.
Scott Bassett: That could be. One thing that’s been nice though is as an appellate practitioner, I will say that insurance rates are relatively low compared to other areas of legal practice.
Sam Glover: Oh sure. Yeah, that makes sense. You can only do so much damage after the damage has already been done.
Scott Bassett: That’s exactly right. That’s another good thing about being an appellate practitioner is that a lot of the emotion has gone out of the case for the clients. They’ve already gone through the trial. They’ve won or they’ve lost, depending on which side we’re on. They get down to more of a I guess a rational, calmer perspective when they’re dealing with their appellate attorneys. I honestly have relatively little contact with my clients. There’s the initial consultation, maybe a few questions in the beginning, and then it might be one or two contacts a year.
Sam Glover: Is that over the phone, or Skype, or Facetime, or do you meet them when you happen to be in Michigan? How do you manage those client meetings?
Scott Bassett: All of those have been part of my method of communicating with clients. I would say telephone is by far the most common, although actually email is probably the most common. I explain to my clients that I can be a lot more efficient and respond to them much more quickly if they send me an email. So I would think that 80-90% of the time my communicaton with clients is by email. Most of the rest is by telephone. Every now and then I’ll get a client who actually wants to see my face. I’m not sure why. Having a face made for radio, I’m not sure why, but they will make a request and we’ll do a Facetime, or we’ll do a Skype call, and then they’ve seen me. Once they’ve seen me once that’s enough, and from then on it’s email, or it’s telephone.
Sam Glover: Does that go smoothly for you generally?
Scott Bassett: Yes it does. I can say that in the 15, 16 years I’ve been doing this, I can only think of two clients who hesitated to hire me because they couldn’t sit in a chair in the same room with me and discuss their case. Everybody else has understood that appeals are a bit different, it’s limited to the record at trial. There’s nothing that they can tell me that isn’t in the record that I could use anyway. So they understand that I’m doing my work essentially in isolation from the record. I will talk to them about which issues they think are important. I’ll give them my opinion about which issues I think are viable, but beyond that they seem to be perfectly fine with the relatively limited amount of contact we have.
Sam Glover: What about Skyping with them? I use Skype all the time. We’re using it right now to record this podcast, but you know like every time my kids want to Skype with their grandparents we spend about 10 minutes troubleshooting because they can’t seem to get the image to show up, or their microphone got muted, or their volume is turned down and they didn’t realize. You know just all those little things. Does that, when you have Skyped or Facetimed with clients, do you have to overcome that, or has it not really been an issue?
Scott Bassett: Skype has been a bigger issue than Facetime.
Sam Glover: I would imagine. Yeah.
Scott Bassett: Facetime just seems to work no matter what device they’re using, whether it’s an iPhone or an iPad. I’ve recently switched from an Android phone to an iPhone, but I’ve had an iPad for years. I use that in court when I argue my cases. So I’m used to using that device. So the IOS as an operating system was always familiar to me, but Skype can be a bigger problem, especially if I’m working with a client who’s trying to connect via wifi. You quickly learn when you’re using Skype that having an ethernet, a wired connection, to the internet is far superior. Wifi, no matter how good you think your wifi connection is, it is inherently unreliable.
Sam Glover: I suppose that’s probably true. I am blessed with amazing internet in my house at least, and it doesn’t usually come up, but at the office when you’re around a bunch of other wifi networks, it totally gets messy.
Scott Bassett: Yeah, whenever I am tempted to use wifi I don’t. I’ve got a 50 foot ethernet cable that will stretch to just about wherever I need it to go. I plug it into my router, and then into whatever computer or device that I’m using to do a Skype call. If I decide I’m not going to do it in my office, if I’m going to do it in the kitchen or somewhere else, as long as it’s within 50 feet, it’s much better to be wired than wireless.
Sam Glover: So we need to take a quick break to hear from our sponsors. So when we come back I want to hear more about your tech stack because I think as a virtual lawyer people might have some expectations about what that means, and let’s take a look. Then I want to talk a little bit more about what the shifting way in which appellate practice is going to e-briefs. I know that you’ve been doing some work on that, and have lots of thoughts about it. So I thought I’d like to chat about that. So we’ll be back in just a minute.
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So Scott we’ve talked about insurance and e-filing and stuff, it just occurred to me on the break that you may have run into the bonafide office rule. I think Florida might have one. So I’m curious about how you resolved that before we get to the other stuff I mentioned.
Scott Bassett: Yes, Florida does have one. Michigan does not. So my state bar up in Michigan doesn’t care where I live, or whether I have an office, or where it’s located. But it was early December 2013, my wife and I were getting ready to go to her office Christmas party. She actually works at the Manatee County Attorney’s Office, that’s the civil legal council for our county government. I went out to get the mail, and there was a letter from the Florida bar. Any lawyer will tell you that any time they get a letter from a bar association it’s not good news.
Sam Glover: Or at least it’s scary.
Scott Bassett: Yeah, so I opened it up and the letter said we understand that you’re practicing Michigan law, but you live in Florida. We don’t think you can do that. So the first thing I did was find out okay who are the best, who’s the best bar regulation lawyer in the Tampa Bay area, which is the area where I live. I hired that person, who of course used to work inside the bar with me doing regulation of attorneys, and had him put together my response. They took a look at it, and they said oh okay so your email and your website and everything says, licensed in Michigan cases only, I guess we don’t think there could be any confusion. You don’t really have an office, and your bar doesn’t require a bonafide office, and you’re not handling Florida cases, or representing Florida clients, we think what you’re doing is probably okay. So they closed the file, and I have been you know keeping my fingers crossed that I do nothing to come to their attention again.
Sam Glover: Not like this podcast.
Scott Bassett: Right. Well a couple of things have happened since then. The last couple of presidents of the Florida bar have been very tech savvy, and Florida is one of the few states that actually has mandatory CLE that includes a tech component. So I’m reasonably optimistic that I’ve weathered the worst of the storm, and they will at this point essentially leave me alone and recognize that I’m not doing anything that in any way intrudes into their sphere of regulation.
Sam Glover: So tell us about the technology that you use to be a virtual appellate lawyer because I think people are probably curious.
Scott Bassett: Yes. Well probably about five, six years ago when the first, when the iPad 2’s came out, I decided that I would deviate from my Microsoft and Windows only practice. Although, I did have a Chromebook actually at your recommendation. You may recall years ago you wrote about Chromebooks.
Sam Glover: Yeah I had one until I dropped it in a snow bank.
Scott Bassett: I happily used that as my primary portable computing device for a number of years until I ended up with a Microsoft Surface Book, which is what I use now. The iPad has been a big part of my virtual practice because it’s the way that I take all of my documents with me when I go to court. In the early days, before electronic filing, and before all the judges were using iPads. At the Michigan Court of Appeals and the Supreme Court, all of the judges are issued iPads and that’s what they use typically on the bench. That’s also how they read briefs. So I bought an iPad 2, and now I’m using a 4th generation iPad, which in itself is getting pretty old, and all my documents are on that, the entire case file. I use a wonderful app called Oral Argument. It allows me to put together an outline of my arguments. I can have little popup windows that will have quotes from statutes, from court rules from other cases. It has a timer built into it. It has tabbed pages for each of the issues in my case, and that is what I use during oral arguments to present my case to the court. I walk, I fly up to Michigan, and I walk into court without a single sheet of paper.
Sam Glover: Very interesting. The last time I argued I definitely still brought paper, and I think I would still do that, but I have kept my case files on my iPad or my laptop for a very long time. In fact, at one point a bailiff told me to put my laptop away, and I said I can’t, these are my files. I only experienced that once, but I hope that the general mood in courts has changed since then.
Scott Bassett: I’ve been fortunate because from day one when I, probably that would have been 2011, in the Fall of 2011, when I got the iPad 2 and started using it immediately, walked right into the Michigan Court of Appeals and started using it and nobody said a thing. There were a couple of other lawyers, one of my family law appellate colleagues who was doing the same thing at about the same time, and we still both do it the same way. In several oral arguments in the Michigan Supreme Court I have walked up with either an iPad, actually I think the last time I used the detachable screen from my Surface Book, and used that as my tablet for my oral argument.
There is an app that comes with all of the Microsoft Surface devices, it’s called Drawboard PDF. Drawboard PDF is very similar to Good Reader or iAnnotate on the iPad. It’s basically a PDF annotation program, so you can use it the same way. Now the only downside of the detachable screen on the Microsoft Surface Book is that it’s got battery life of only two hours, so it’s not the 10 plus hours of an iPad. Of course that’s more than enough to get you through any appellate argument. So for that reason, I tend to switch back and forth between the iPad and the Surface screen, but the iPad is smaller and lighter. I’m using the 9.7″, like I said 4th generation iPad. I am waiting to see the new iPad Pro. I think we’re going to see a 10.5″ iPad Pro released relatively soon, and that might be my time to upgrade from the regular iPad to the iPad Pro.
Sam Glover: Yeah. Apart from iPads and iPad apps, do you use any special software on your laptop? I imagine you’re drafting briefs in Microsoft Word and you obviously use email, is there anything else that you couldn’t practice without?
Scott Bassett: Yes, there are two programs. They’re both Word plugins. I use WordRake and Perfect It. All of my briefs, basically everything I file with the appellate courts, will go through WordRake and Perfect It before they get filed. The two have different purposes. WordRake is basically a style checker. What it tried to do is make you write like Hemingway. Short, concise sentences. No passive tense, and it absolutely hates the word that.
Sam Glover: So do I.
Scott Bassett: So I’m taking that out of my briefs whenever I run through them with WordRake. Then Perfect It is like proofreading on steroids. It catches errors and inconsistencies that the built in spelling and grammar checking in Word would never catch. If you’re inconsistent in capitalization, or use of punctuation, use of hyphens, inconsistent in the spelling of a particular term, Perfect It will pick that up. You can either change all instances in the brief, or it will let you go through it one by one. For example, I might sometimes in a brief intentionally capitalize the word court in some places, and not capitalize it in others depending on which court I’m referring to. So it’ll give me the option to go through one by one and decide which one of those I want to change. Of course that’s far more sophisticated than what Microsoft Word can provide.
Sam Glover: Yeah.
Scott Bassett: I’m also a big One Drive user. I keep everything on One Drive. My copy of Word comes from Office 365, so I’ve got the ability to use Word on my iPad, on my Surface Book. I use the Android version on the Chromebook that I still have because I’ve got one of the few Chromebooks that’s still running Android apps. It’s the Asus Chromebook Flip, the small, relatively small 10.1″ screen. Those are really, that’s the software that makes things go round. From a management perspective, I still use a locally installed copy of PC Law. I have often thought that hey I’m a virtual lawyer, I ought to be in the cloud for my time billing, accounting, and practice management. What I haven’t found yet is a cloud based system that’s been around long enough that I’m satisfied with that will do accounting the way I want it done.
Sam Glover: That is a common sentiment among PC Law users for sure. Do you have a favorite font?
Scott Bassett: Yeah.
Sam Glover: You’re an appellate lawyer. Appellate lawyers have strong opinions about font, so I’ve always got to ask.
Scott Bassett: We do. In fact one of the first encounters you and I had was an argument over fonts in appellate briefs.
Sam Glover: I assume you were wrong, so …
Scott Bassett: Actually I can concede that I was wrong.
Sam Glover: Nice.
Scott Bassett: But you know, I keep close to me a copy of Matthew Butterick’s Typography for Lawyers book.
Sam Glover: Yup.
Scott Bassett: In fact, I’ve got the first edition. I want to go out and get the second one, it’s been revised. He recommended a couple of fonts that are downloadable for free. Charter is a serif font, and I use Charter in all of my appellate briefs now. He recommended Cooper Hewitt, which is a sans serif font, and I use that for my headings in my appeal briefs. They’re both free, and I have downloaded them and installed them on my desktop computer, and on my Surface book.
Sam Glover: Oh nice. I suppose you can’t use those on your Chromebook though right?
Scott Bassett: I cannot use them on the Chromebook. No, unfortunately, and I can’t use them on the iPad when I’m using the IOS version of Microsoft Office.
Sam Glover: Au contraire. There’s a great app called, oh I can’t remember what it’s called now, but it’s a font app that allows you to add fonts to your iPad, or your iPhone, or your IOS devices.
Scott Bassett: Wow.
Sam Glover: Yes. It was transformative for me because we actually use Butterick’s fonts for a lot of our Lawyerist stuff. Everything on the site is in Butterick’s Equity font, or in his, oh I’m forgetting the name of his, he uses a monospace font and a sans serif font for our headings. So I’ve added all of those to my iPad so now I can draft in beautiful Butterick fonts on my iPad, which is awesome.
Scott Bassett: This is great. I learned something that will be very valuable to me because when I get that new iPad Prot then maybe I can do a lot of my work just on my iPad, and I can skip the Windows computers altogether.
Sam Glover: Well for those listening, I will name that app and put the link to it on there so that you too can have the fonts you love on your IOS devices, but obviously not for your Chromebook. Scott, you mentioned that Michigan Court of Appeals judges and I assume Supreme Court judges, are issued iPads as part of their technology stack, which makes me think they must be reading briefs on iPads. I’ve been following for years because I do appeals, and motion practice is my favorite of law practice and it’s one of the things that I still do, and you know Garner set the world of legal writing on fire by suggesting that all citations should be in footnotes. That was hotly debated for a while.
It’s my impression that e-briefs has kind of settled that argument, and that he has lost because flipping back and forth from footnotes to the body text is really hard when you’re reading a brief on an iPad. I’m wondering if I’m right about that, but also what are some of the other considerations we should think about when we are drafting briefs to be read on a tablet, and what is the distinction between that and an actual e-brief? Let’s dive in.
Scott Bassett: Yeah. I would like to give myself credit for being a visionary. I was always a descender from Brian Garner’s view on footnotes. I never used footnotes for citations, and as things have developed with electronic briefing, you’re right, footnotes are very difficult to use if a judge is reading your brief on an iPad. So what happened last year, in November, the American Bar Association Council of Appellate Lawyers issued a fantastic report with recommendations for electronic briefing, for e-briefing, how to improve readability, and also some other things about how the brief should be processed once they get to the court level, but I want to talk more about the briefing itself.
What Michigan does now unfortunately is we have, we’re I think one of the few states that still have this, we have a page limit for our appellate briefs, 50 pages. Unlike the Federal system, and most other states which do it by word, by word count.
Sam Glover: People don’t appreciate the difference. There is no good reason to have a page limit because it gets ridiculous. You want to use different fonts, and different fonts have different lengths. Page limits are just silly. You should be using word limits.
Scott Bassett: Exactly. And it encourages bad behavior by appellate lawyers, including me sometimes. If I have, if I want to be too lazy and not edit the brief the way it should be properly edited, and I’m at 52 pages, and I’m using Charter, all I have to do is switch to Times New Roman. Please forgive me for doing that.
Sam Glover: I was scowling, but you can’t hear that.
Scott Bassett: Yeah, I know, All of a sudden it’s a 48 page brief, and I’m under the 50 page limit.
Sam Glover: Or the one that just became an issue I think in the last couple weeks where lawyers were sanctioned for turning in a brief that used double spacing according to the typographically correct definition, but not the commonly used definition because Word doesn’t actually double space when you select double spacing. So the lawyer, Word adds extra spacing. So let’s say you’re using 20 point font, double spacing would mean 40 point line height. That’s the typographer’s definition of it, but Word actually makes it say like, a double spacing for 20 point font would be a 44 point line spacing let’s say. That’s what the courts mean when they say that it must be double spaced. So a lawyer got sanctioned for doing it correctly according to typographers, but incorrectly according to Microsoft Word. That’s some serious bullshit all around right there.
Scott Bassett: Yeah, and the typographers are right. Word is wrong, and the courts are wrong. That’s actually one of the recommendations from the Council of Appellate lawyers is to get rid of the standard double spacing. Apparently from a readability perspective, the spacing should be somewhere between 120% and 140% of the height …
Sam Glover: Yeah, 1.2 to 1.4.
Scott Bassett: Yeah, of the height of the font that you’re using. There’s no reason to go with double spacing, but you can see the issue that would present if you were going by page count instead of word count. So we are working on, I’m chair of the ad hoc e-briefing committee for the state bar of Michigan Appellate Practice section. We are working on what will hopefully be a court rule amendment proposal to implement a lot of these changes, which would be going to word count, eliminating double spacing. I think we’re going to require serif fonts in the body of the briefs, not in the headings.
Sam Glover: You should include examples other than Times New Roman because lawyers are afraid to deviate from any examples given.
Scott Bassett: Right. We want to do a set of best practices that will go along with the rule amendment, and that will include a set of recommended fonts.
Sam Glover: Nice.
Scott Bassett: The Michigan Attorney General’s office uses Century Schoolbook as their standard font, which is probably 25% larger than Times New Roman. So under the current court rules they’re doing themselves somewhat of a disservice by limiting the length of their briefs, but they decided that they’d rather have their briefs readable to the appellate judges who are reading them on their iPads. You know it’s one thing you think okay if I can write longer I could be more persuasive. Well you’re not very persuasive if your brief is just so painful to read because it’s in 12 point Times New Roman on an iPad screen. That’s not the way you want to do it.
Sam Glover: Well and let’s just be clear that longer is never more persuasive.
Scott Bassett: That’s also true.
Sam Glover: That’s just not the way it works.
Scott Bassett: Among the things that we’ve been looking at are different formatting for e-briefs. A true e-brief would not look a whole lot like a paper brief would look. A true e-brief would make a lot of use of white space, it would use a lot of bullet points, it might have embedded images, it would have embedded links. Those things very rarely appear in a, well they wouldn’t appear in a paper brief. You’re not going to have embedded links, you’re just going to have typed out URL’s.
Sam Glover: It would look more like a page on a website might look right?
Scott Bassett: Exactly. Every three years there is an appellate bench bar conference in Michigan. It’s cosponsored by a foundation that we have there, by the courts, and also by the appellate practice section of the state bar. We have, both of the last two bench bar conferences, we’ve had presentations on electronic briefing and what an e-brief would look like. A colleague of mine who primarily does criminal appeals, his name is Stuart Freedman, actually drafted a brief that looked like a webpage. It was fascinating to see, and it was entirely different than what we’re used to seeing on paper. So we need, lawyers doing appellate work need to shift their mindset away from okay we’re trying to replicate a paper brief, but we’re simply e-filing it, which really doesn’t do us any good. We’re trying to create a whole new format that will be more persuasive because it looks like what people are used to seeing online, on webpages. It will be easier to read, easier to follow, and it will be more persuasive. It’s going to take a long time to get over that hurdle. We may have to have a whole generational change among appellate lawyers, but we’ll get there.
Sam Glover: Well and given what most lawyers websites look like right now, the idea of telling them to build briefs that look like websites when there are many lawyers still aren’t even very good at constructing good looking briefs is somewhat terrifying to me actually.
Scott Bassett: It is. Among the things we want to do though to make it easier for courts to read is, and this is one of the recommendations from the Council of Appellate Lawyers, is to allow filing of a fixed format brief, which would be your standard PDF brief, but also allow the filing of a brief that could be reformatted by the court to suit their needs, which would be typically either an HTML brief or possibly even a brief in Microsoft Word format. I’ve checked …
Sam Glover: Well I suppose even if you’re not going to do a fancy, you know designy argument in HTML format, just PDF’s are a pain in the ass to read on a tablet. They don’t reflow the text, you can’t make it bigger or smaller. It’s like reading one page at a time, and the text is small. So when you talk about formatting briefs for a tablet, part of it is like if you have to turn it in in a PDF there are some things that you might want to do with it to make it not suck for the judge to read. Just allowing people to turn in briefs in a more flexible format would get around a lot of those problems.
Scott Bassett: It would. Not having things like page limits instead of word limits, not having strict margin limits for example, paragraph spacing. All of those things can be altered to make a brief more readable in PDF format, but probably would violate many of the existing rules we have to work under.
Sam Glover: Yeah. No, and it’s interesting. I would love to give lawyers the tools and permission, official permission, to experiment a little bit. You know it’s kind of on their head if they screw it up, but you know the iPad and Android tablets are very well established formats, and HTML has been around forever. That’s a good one to go with. It’s not that scary to try and submit something in a different format, and I’d love to see some lawyers try. That would be kind of cool.
Scott Bassett: Well if we can get the rules amended in Michigan, I may be among the first that will have a chance to try that. I’m looking forward to the opportunity certainly.
Sam Glover: Yeah, we’ll hope for an update on Lawyerist if we see that. Scott, thanks so much for being with us today, and for chatting about e-filing, and going virtual, and e-briefing. It was fascinating, and I love geeking out on fonts as always. Thank you for letting me be a, or at least saying I was right about our argument about it.
Scott Bassett: Well what you were right about is I was using Tahoma in my briefs, which is a sans serif font. You got all over me about that.
Sam Glover: I bet I did.
Scott Bassett: Then I suggested Verdana as an alternative.
Sam Glover: Oh no!
Scott Bassett: You were equally unhappy, if not more so.
Sam Glover: Oh.
Scott Bassett: That was I think our first encounter. It was, I think it was via email. Our more recent encounters have been a lot more pleasant.
Sam Glover: Well good. I’m glad I make a negative first impression, but you stuck around. By the way, thanks for sticking with us to the end because while we were talking I checked it out, and that font I mentioned that allows you to put any font you want to on your IOS device is called Any Font. I think it’s $3 or $4, and it made me so, so happy to be able to do that. Check that out. I’ll put the link in the show notes. Scott, once again thank you so much for being with us, and I hope to see you again soon.
Scott Bassett: All right. Thanks Sam.
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