Appellate Insights

It’s always been true that appeals can make common law, so that litigants must vet their arguments with that prospect in mind.  But in the era of Big Data, consider also that appeals leave an electronic “trail”—with briefs routinely uploaded to Westlaw, often posted on court websites, and sometimes even indexed in databases maintained by opposing-counsel organizations.

Because briefs live on “in the wild,” litigants should exert control while they have it.  Edit drafts with the following tests in mind:

• Would you welcome opposing counsel in other cases to read the brief, and possibly quote it elsewhere?
• Would you want a judge in another jurisdiction to read it before deciding a case you have pending there?
• Would you want investors, employees, or other stakeholders to read it?

►  The practical message:  Like so much else in 2018, a filed appellate brief is “content” in the public domain.  Assume it will be word-searchable and accessible to the world, and frame it accordingly.