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CA Appellate Law Podcast - Susan Gelmis

CM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan Gelmis

Tim Kowal     October 18, 2023

Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why the 9th Circuit is leaving the CM/ECF system, in favor of a new, more secure, and fully web-based (not plugin-reliant) system called the Appellant Case Management System, or ACMS.

The 9th Circuit is also saying goodbye to remote oral arguments. Starting January 2024, all oral arguments will be in-person, unless you make a showing of hardship.

Want meaningful work and oral argument experience? Apply to the 9th Circuit Pro Bono Program.

We discuss other 9th Circuit inside baseball, like hyperlinked briefs.

 

Susan Gelmis’s LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Transcript:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:16  
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you recommend this podcast to a colleague, we'd be most appreciative Yeah, before we jump into this week's interview, we want to thank casetext for sponsoring the podcast casetext is illegal technology company that developed AI back tools to help lawyers practice more efficiently

Jeff Lewis  0:43  
since 2013. casetext relied upon by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments in March 2023. Casetext's launch co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy and listeners of our podcast enjoy a special discount on case Tech's basic research a casetext.com/calp That's casetext.com/calp.

Tim Kowal  1:13 
and today we're very pleased to welcome to the podcast Susan gal Miss Susan gal miss is the chief deputy clerk for operations at the Ninth Circuit Court of Appeals. She has been with the Court of Appeals for over 30 years previously serving as supervisor of the motions and pro se units in the staff attorney's office and as director of the circuits pro bono program for 22 years Susan has served on numerous circuit wide committees and task force Task Force's well I got that out finally related to prisoner and pro se litigation and as liaison to the pro se clerks in the district courts organizing and speaking at Circuit wide and national conferences. In 2015. Susan moved to the clerk's office where she oversees all docketing and filing and calendaring systems and procedures staffs the circuit Rules Committee and organizes and speaks at CLE programs around the circuit. Susan is a graduate of NYU Law School and is originally a native New Yorker. Welcome to the podcast. Susan,

Susan Gelmis  2:09 
thank you very much. It's really a pleasure to be here.

Tim Kowal  2:11 
Was there anything I left out of the introduction that you'd like to supplement?

Susan Gelmis  2:15 
I think it says way too much. That was perfect. Thank you.

Tim Kowal  2:19 
Okay. Well, Susan, we were pleased to have you on today to talk about the Ninth Circuit's new COVID 19 protocols, that there's an announcement going out. And I know the circuit wants to make this widely known to practitioners in the circuit. And the announcement is that as of January 2024, so just a couple of months from now, all Council and parties that are invited to argue at oral argument before the court are expected to appear in person. That means the circuit is putting an end to the remote appearances or the presumptive remote appearances, it still will be available. If an in person appearance would pose a hardship then that party or counsel may file a motion to appear remotely and absent exigent circumstances the motion should be filed within seven days of the calendaring. Notice, we want to ask you a few questions about about this for for better education of ourselves and our listeners. Now, the guidance is has the COVID guidance in in all courts and including in the ninth circuit is changed several times. Is it possible that this new presumptive in person oral argument rule is going to change again in the future? Well, certainly

Susan Gelmis  3:29 
it could change if there is a reason why they you know, it would be unhealthy for whatever purpose for to be gathering in person, for anybody for the judges or the attorneys arguing that seems you know, we seem to be past that at this point. But just as when COVID first hit and everything got shut down, we were able to pivot immediately to fully remote hearings, because we already had the technology understaffing in place from our live streaming that we've been doing for a long time. So if that were to ever happen again, we could certainly do that again. But this is the new reality moving forward.

Tim Kowal  4:08 
Got it. So the the protocols that that I read out and they come from the the courts website, it they indicate that the court has quote, a strong preference for in person argument. So I guess that's something that that practitioners and party should keep in mind if they're going to be applying for a hardship that the court has a strong preference. What's the background behind this strong preference that the courts develop for in person?

Susan Gelmis  4:30 
Well, I mean, I think if you look at before COVID, we were one of the few courts that had the ability for a judge or an arguing attorney or pro se to appear remotely, but it was we didn't have a rule about it. We didn't have any kind of practice about it. If there was some emergency or some, you know, particular really important reason we have the ability to do it. And in fact, we have a judge who is based in Seattle who is unable to traveled due to a disability, and so when he sits in any of our courthouses outside of Seattle, he always appears remotely. That's been true for a long time, because that's just his only option. So we've always been able to do it. But it's never something that the court, you know, wanted to be as its regular practice, then obviously COVID hit, we went completely, fully remote. And even after our judges started coming back in person, because they felt that that was an important thing for them to be able to do to confer in person and spend time together. You know, they said, Well, for now, we're going to leave it open to the attorneys to decide which way they want to appear. And they've done a lot of thinking and talking about it since then, and have now decided that, you know, there's no real public health reason to not have people back in person. And so, you know, people should come in person, unless there's a reason why it makes it a hardship for them, in which case, the panel will certainly take that into consideration.

Tim Kowal  6:01 
Now, since the since COVID, in the necessity of COVID. has driven a lot of courts, including the ninth circuit to hold, I think just about all courts have retrofitted their their technology, so to accommodate remote arguments, and and a lot of jurists have come out and said, this works just fine. It's not, we don't see a strong reason to go back to in person. And I guess it remains to be seen what other courts are going to be doing. Was that ever a consideration in the ninth circuit that will maybe we'll maybe we'll keep it remote. Certainly,

Susan Gelmis  6:34 
I mean, I think the court really, truly did not make any decisions until now, because it really wanted to see how this was going to play out. We we have appellate lawyer representatives who last year for our Judicial Conference had done a an extensive survey of practitioners before this court about what they thought about the future of remote appearances, the court, the chief judge appointed a committee of judges to consider the issue and they spent a year first considering whether judges should be have a strong presumption of being in person. And then once that was agreed upon by the court, then they turned to whether attorneys should continue to have the option, you know, at their decision. And, you know, as you can imagine, in a court of 29, active judges and 54 judges total, including senior judges, there's a lot of a broad spectrum of thinking about this. There are some judges who feel very strongly that these arguments are you know, that they are formal, and they should be in person. And that that is just the way it should always be. There are others who don't really feel that way. They all feel like in person is usually a better experience for the court, because you don't I mean, our arguments are very much conversations where the panel, the reason they're holding oral argument is because they have questions, usually. And so there is a conversation with the attorneys. And if the attorneys have a bit of a delay, or they you know, they're not picking up on the cues the way that you would in person, it makes that harder. That

Jeff Lewis  8:15 
totally makes sense. Yeah. And state court. Yeah. I just had an argument last week where it was a cold cold panel were no questions. It was rough. Rough. So yeah, that's, that's a GI wish the state system had this invitation process where the justices would invite us to oral argument on all my cases where they really think oral argument will make a difference. Yeah.

Tim Kowal  8:36 
Wonder if the experience of appellate jurists differ along State and Federal lines because of that difference in protocol in oral argument, where in the Ninth Circuit oral argument is by invitation only. And so that that suggests that there's usually going to be more questions, it's going to be more, there's more going on more of a conversation. And yeah, I think it's it is natural that it's going to be more conducive to a more more like a natural conversation when you're in person and when you're remote, and you have those additional technical overlays to it. Yeah,

Susan Gelmis  9:09 
I wouldn't add that. I mean, I think our judges really understand that there are considerations on the other side that are important. And that's why this sort of ambiguous, vague hardship guidance is given because it's going to be up to each panel, whether they think something qualifies as that, but you know, that the judges have heard from the bar that there are reasons why it might not, you know, why it might be problematic financially, you know, people it's more of an access to justice issue if people don't have to, you know, pay or their clients don't have to pay to send them for a 10 minute argument, you know, from one state to another so that they definitely know that there are considerations on the other side and they are open to hearing those but but they certainly prefer in person when it's possible. You

Tim Kowal  10:00 
mentioned that that what constitutes a hardship will be up to each panel. Are there any, any guidelines? Are there any, any published guidelines about what will constitute a hardship? Or is there any guidance that our listeners can be aware, aware of what type of factors would constitute a hardship to appear remotely at an oral argument? I think

Susan Gelmis  10:18 

that they very deliberately, at least in this outset, period, did not provide any more detailed guidance than that. And there were conversations about what even should be the word whether it should be hardship or some other standard. And I think they deliberately left it open because hardships will vary depending on your circumstance. If you work in the same driving, if you're within driving distance, you may not be able to show hardship as much as if you have to fly from another state that only has direct flights once a day. You know, so I think it really is going to vary. And but that there, I don't think anybody is going to be penalized for making an argument. That something is a hardship, even if the answer is no, you don't get it.

Tim Kowal  11:12  
Yeah. I wonder if we can look forward to any differences of opinion among Ninth Circuit jurists about what constitutes a hardship I noted last month, there was a dissenting opinion in a decision about a pre oral argument, an additional authorities letter and a dissent about what constitutes additional authorities that can be invited to be discussed at oral argument. Yeah, I will

Susan Gelmis  11:33 
say I would be very surprised if anybody's gonna publish the orders addressing these motions to appear remotely. I could be wrong, but I find it hard to imagine that, that we're gonna get any published presidential

Tim Kowal  11:47 
guidance. Okay, so just just use a put on your your best loyally arguments about what constitutes a hardship and make a good faith argument.

Susan Gelmis  11:56 
 
Argument is the key, I think, yes. Yeah. Let's

Jeff Lewis  11:58 

shift gears and talk about another recent announcement by the Ninth Circuit about extensions. You know, I practice primarily in state court and state court, you can get 60 days worth of extensions just for having a pulse was another 15 for a default for a total of 75 days. And beyond that, you probably get two or three more, if you can show good cause. The Ninth Circuit recently announced that they're going to be tightening up the policy regarding extension. So what should attorneys know about this this shift in policy? And what what prompted the change? Well,

Susan Gelmis  12:26 
I'll start in reverse order. What prompted it is that I don't know if you can hear that. Sorry, what founded it is that, like all the federal courts of appeals over the last few years, even starting before COVID, there has been a pretty consistent downturn in filings. And that, you know, like I said, that started before COVID, it's national, during COVID, exacerbated and went even further down, because, you know, just courts weren't holding trials, and some of the agencies got backed up. So we have, we've had this steady decrease in incoming violence over the last four or five years. But we have not had a decrease in output. We didn't skip a beat during COVID, we continue to decide and or terminate in many, many cases each year. And so our backlog is down lower than the clerk and I have ever seen, and we've both been here over 30 years. So as a result, we are scheduling hearings, oral argument hearings, in cases, frequently, immediately after the answering brief is filed. And sometimes my staff are literally looking over the case management attorneys shoulders, saying we need to assign the cases for the next calendar. Do you have any cases with answering briefs that you haven't put into the system yet, because we need that. So this is a huge change. The court discussed it at its annual symposium in the spring, and decided that it was time to to go back to enforcing our rules about this, which is really all this announcement is, but it's a huge cultural change in this court. Because for many years, we had a backlog just because our filings were so overwhelming. We had a very high backlog. And so if people wanted extensions, we said great, no problem. We've got 10 Other cases to schedule in your place, not a problem. And why rush people into getting us briefs that are going to be stale by the time we hear it anyway. So it just became a culture where sure you ask for it. You get it no reasons need be given. If it's unopposed. We don't really care if you know, if it's goes on for years, you know, and people would lawyers would say, Oh, we don't have to, you know, we can't meet your deadline because we have deadlines and other courts where they actually enforce them. So this is really a culture change, to to steer people back to To what it hasn't been for a very long time, which is that we are going to enforce our rules moving forward about extensions, and that's new. Okay,

Tim Kowal  15:07  
so So pay attention to the courts backlog, if there's a large backlog, then then your chances of getting an extension are a little bit more favorable. But if you're looking for for more, if the court is looking to just process what it's got, then put on a good show.

Jeff Lewis  15:27 
This is part of my ignorance, what explains the downturn in filings in the federal system? Or in the Ninth Circuit? You

Susan Gelmis  15:33 
know, that's really not clear to me anyway. I mean, it is national, and it's it, you know, other than during the height of COVID. It's been sort of gradual, but, but I'm not sure what, what that's really about. I do know that COVID related, apparently, the Board of Immigration Appeals has a frighteningly huge backlog. No, that will eventually make its way to us because we get over 50% of their POS nationwide. But so it could change. You know, when that when that changes, but I don't know the answer to

Jeff Lewis  16:11 
that. Okay. Well, do me a favor when you attend some conference with other clerks from other court systems don't share this idea with the state court clerks in terms of tightening up extensions. All right, let me ask you about a different announcement, I got an email that prompted my invitation to have you come on the podcast, I got an email about the implementation of AC M S, what is a CMS? How does it differ from Pacer? And what do we lawyers need to know about it?

Susan Gelmis  16:37 
Thank you for asking that. I just did the second of two open zoom presentations to the bar about it this morning. The second circuit and the Ninth Circuit a little over five years ago, started working with a Microsoft partner to develop a new case management system that would at least in our two courts, replace cm ECF, which is the electronic filing system that the federal courts have been using for some time, we have, we're doing an agile development with this Microsoft partner, which means that we literally every five or six weeks, we have a new sprint with new stories where we build new functionality, or we enhance existing functionality. We're building it with total court user input, making a it's a web based platform on Microsoft based platform. So cybersecurity, you know, when they update, there's we get the benefit of that. And we have it's there's there's sort of the the core functionality that all federal circuit courts need. But then there's a lot of court configuration ability, because we all do things very, very differently, as we and our counterparts at the Second Circuit are never cease to be amazed by it. So so that's kind of the background of it. We started using it in both courts for new immigration cases, since that's a big chunk of our caseload in 2021. So we've been using it for over two years already. We rolled it out to a couple of additional kinds of cases. But we didn't have appeals from district courts until March of this year, we started with Criminal Appeals. And now as of this month, we are opening all new cases in a CMS in both circuits. So we're not going to you know, the CME CF cases that were opened before will continue to go along and cm ECF. But for all new cases moving forward of every kind, in these two courts, we are opening them in ACLs. What was

Jeff Lewis  18:31 

the problem with cm ECF that you folks were trying to fix with this new system.

Susan Gelmis  18:36 
It would be a whole nother podcast to get into all of the many problems. But I can tell you that last year, early last year, the Administrative Office of the Courts, which is the centralized administration of the federal courts, finally conceded that cm ECF was not sustainable and needed to be replaced in all federal courts. So they are looking into building something with Agile development and user input and all of those things. They're not committing to us by any means. But they understand that once we're a little bit more complete, we plan to open it up to the other circuit courts many of whom are very interested in in joining Rs. By the way, ACM S stands for appellate case management system. So we are building this as an appellate system. But it could be used, you know, it could be used as a as a starting point for other systems. CMAC AP is a outdated technology. It's not a web based platform. It's built it still has a Java plugin for any of your listeners who know what that means. But we can only use edge in the court for this and that's only recent, we were having to use Internet Explorer which wasn't even supported by Internet Explorer anymore. So and there are serious security concerns. And it just is not it's it's outdated. I mean it's it's really It's been used for a long time, and they want to replace it with a web based system like we are doing. So we applaud them for, for taking that step. We are very glad that we were already four years in. They said that, you know, but the other courts, the district courts and other federal courts still are using cm ECF. And so people are still filing their notices of appeal there, whatever, it's just that we are now opening cases and processing them in a CMS, the Pacer side of it is not changing. But the filing, the actual filing and where you go to do that is a little different. And that's what I've been doing demos and trainings about. And we've posted videos on our website, the filing page. So

Jeff Lewis  20:44 
Tim, I should say make a note, Susan's promised to come back for another hour to talk about all the problems with CMS, cm ECF. I know your inner your inner computer geek Tim was a computer guy before he went to law school so he could chat for an hour. I have no idea what Java is, other than I think it relates to coffee. Yeah.

Susan Gelmis  21:02 
I don't know if I'd be the right person for that one. But I could probably play

Tim Kowal  21:07 
the game so long that that job. I thought Java was state of the art now. Now they're phasing it out.

Susan Gelmis  21:11 
It was state of the art at one point, and now it is very problematic. So yeah,

Tim Kowal  21:17 
well, what what can our listeners what can Attorneys expect to see different? How did you know whenever you move in attorneys cheese, you know, they're going to be very upset and they're gonna get heart palpitations, is it going to be much different by the time they have to get a new login to log on? And do they have to, and mostly it's going to be their staff who have to acclimate to all of these changes. Yes, and

Susan Gelmis  21:38 
I've definitely had a lot of staff on my trainings, it is, again, in terms of Pacer, no different at all, it's still everything all the CME CF and ATMs cases are all in pacer in the same place. There's one, we don't yet have the notice, for cases of interest for the sort of non filing people who just want to get notice of docket activity, we're working on that we should have that within a month at a CMS. But otherwise, the Pacer connection really is the same. They still get emailed notice of docket activity, they look very much like the cmec F ones, they get their one free look from that email. The main difference is that when they do their filing, and when they want to see information about their cases, or enter an appearance or anything else, they're going to be using the ACM s portal instead, which is a web based portal. It's it's the same login. It's your pacer login, we are central sign on court, we have been since 2014. So

Tim Kowal  22:36 
that is still used there. There's the same cm ECF login information.

Susan Gelmis  22:40 
Yes, it's exactly the same. For now they're still submitting admission, Attorney admission applications through cm ECF. We will make that functionality in the portal at some point but but registering for filing is the same for both systems, you just register through Pacer, say I want to file in the ninth circuit and then we on our end process that in both systems. So it's pretty seamless, except that the portal is just a different experience for doing your filing. And, I think a much better experience for the filer. And so far the attorneys who have been using it, other than when they come across glitches and you know, bugs, which I'm always grateful to hear about because I can we don't know about them unless the filers tell us they've been really happy with it. It's a much more intuitive and user friendly system. I think

Tim Kowal  23:29 
it sounds it sounds like as before there will be you'll have to have a different portal account for each circuit that you appear. And the Second Circuit has its own, the Ninth Circuit has its own, which

Susan Gelmis  23:38 
is true for cm ECF. I mean, the fascinating thing about cm ECF is that it is not one big federal system that all the courts are part of it is literally their cm ECF for district courts, which is a different system than cm ECF for bankruptcy courts and different from CMS. Yeah, first circuit courts. And even within those, you have to have a separate filing account for each individual court. That's been true in cm ECF from the beginning. And so since we're doing the registration the same way I'm using your pacer sign on it's the same

Jeff Lewis  24:09 
for this interesting okay. And by the way that that thing about using the the Pacer Saigon Will that continue to be the case many if you change your pace or sign a sign on down the line, we'll be able to use that change password to access this new system. Yeah.

Susan Gelmis  24:23 
Basically, it's the same central sign on as as you do with CMS. Yep. So any changes you need to make to your filing account like new email addresses or a change of firms or a new address mailing address, you make those through your pacer account, and then we get noticed of that and we process those changes on our end. We are I will say I said this in my training this morning. We are really really backlogged right now with registration updates just because our helpdesk is overwhelmed with all of the many things happening in both systems. And so that is taken you know, is we're just we haven't On the backlog in those than we have before. So if registration updates are not happening right away, that's why that's

Tim Kowal  25:08 

all right. And we'll put a link to in the show notes to where you can get more information about the new a CMS system and what you need to do to get ready for it. Jeff, you had a couple of questions in here. I wanted to ask Susan about if we just move into just a more general as general questions about what the court is doing with and what the clerk's are seeing with AI in terms of its you know, we've we've heard some some commentators, legal commentators talk about a lot of attorneys, obviously, using AI, there's a lot of products available, is a ninth circuit, using any AI tools in its in doing its research in the process of reviewing the record and drafting opinions. Certainly,

Susan Gelmis  25:49 
I will say that, you know, centrally, like the staff attorney's office where they do research for not just for any one judge, that that is not something that the court is using, whether individual chambers are, you know, allowing their law clerks to use? And I think there's a range of what that means to you know, there's, there's anything from, you know, right, right at opinion for me which I can, frankly, it's hard for me to imagine any of our judges ever being willing to use that kind of a thing, all the way to, you know, check my grammar and usage, which I think is a different thing that really isn't what I think of as AI. So, you know, people may be using something on that end of the spectrum. But, you know, it's it's relatively new. And we've started, I've started hearing conversations between judges about, you know, what they think of this and whether we should think about having some kind of rule, and I'm sure at some point, we probably we'll have to, but I think it's very premature. I know that we've got some judges who are being asked to, you know, present CLE programs on some of this sort of early conversations about it. I think the Fifth Circuit has already adopted some kind of a rule basically, prohibiting attorneys. I don't know exactly what the rule says. But I know that they are not excited about AI. Yeah,

Jeff Lewis  27:11 
 
they have to sign a certification that AI was not used to generate the brief or something like that. It's pretty controversial. I don't

Susan Gelmis  27:18 
know whether we will, you know, where or whether, when how we might end up with any kind of rule? I mean, I don't know if it would be quite that strict. But, but certainly, I know, there's a lot of concern, there have been some reported instances of otherwise seemingly well written briefs that are citing to cases that were made up. And if the attorney who's, you know, submitting such a brief hasn't bothered to check that the cases that they're citing to are real, that's a serious concern. And my own personal I mean, I'm not speaking for any judges here. But certainly I know that would be concerning to our judges.

Tim Kowal  27:55 
Yeah, the way I think of the best way to use AI is like, you know, I started my own my own firm in July. So I don't I don't have a hallway full of attorneys that I can poke my head into office, I can poke my head into and ask a question about, hey, I got this case with this weird issue. I want to get your take on it. But when I would do that, you know, and they say, oh, you know, think about this, right? This case, once had this weird fact pattern, and this was the outcome, well, I don't run back to my office and then type down my associate said this and cite the case thing that he thought he remembered, I go and look it up and check it out that I use AI the same way I you know, put in my theory and ask AI, is this cockamamie? Or is there something to it? And it says, oh, no, some cases support this? Well, I don't copy and paste that into my brief, I go check out the cases, just the same way I use an associate attorney and just get there or a colleague and just get their their hot take on an issue. But you have to check it out. Right. But what about that?

Susan Gelmis  28:50 
I think it's premature for on our end, like I don't I can't imagine any kind of rules coming out soon, just because because it's new. And for those kinds of reasons. We have people with differing opinions, etc. So yeah, that's a really good point. Yeah.

Tim Kowal  29:03
 
Yeah. But I would, I would be disappointed if if there was a kind of a general, a general frowning upon AI coming from the bench that we don't want you to use AI at all, because I like to be able to like to be able to check things out, just to get some ideas, you know, just to get ideas wherever you can, wherever you can get them, but you still have to do the process of checking them out.

Jeff Lewis  29:24 
Yeah, yeah. You know, in some ways, Westlaw is AI in terms of you put it in natural language search and you get an output. It's a liquid AI. Let me ask you, this isn't a related topic. I see a bunch of paper on your desk in your background. Do Ninth Circuit judges read briefs on iPads and gadgets? Or do they print out briefs or or read the briefs that we submit in the mail and related question, When will the Ninth Circuit phase out mailing in the printed briefs?

Susan Gelmis  29:51 
These are all great questions. So first, I will say that the piles on my desk have mostly been there since March of 2020 when I went home to work remotely full time, and by the time I came back, I just wasn't even worth going through the piles to see what they were. So don't use a lot of paper myself. I will I will say that, you know, in terms of our judges, I mean, again, we have 50, I think 453 judges, including the senior judges, so they have a wide diversity of how much paper they use. In 2018, I think we did a staff survey, you know, we gave the judges all this information about exactly how much staff time and you know, postage money and all this other stuff is put into receiving column for, you know, enforcing, receiving storing shipping paper, etc. And a lot of judges, you know, were pulled back on the amount of paper that they asked for at that point. But all of them at that point, and consider we've had 17 new judges since 2017. I think so, you know, probably time to do this again, at some point. But, you know, all of them said at that point, we still want one paper brief, because they want to be able to, you know, mark on them. Now, we do have some of our newer judges are fully paperless. And you know, they only rely on the electronic case materials that we would supply to all of our judges. Regardless, I would say all the judges will use a device on the bench, almost all the judges will use a device on the bench or when they're traveling, which they do a lot, you know, because then they have all the briefs and all the excerpts of all these materials right there. And we bundle it for them with a program that gives them you know exactly what they need. So I that there's a lot of that. But we still have enough judges that want at least one paper copy. Okay. That I don't see that going away soon. But it is certainly something I will continue to watch my

Jeff Lewis  31:57 
I'll never forget the day my paralegal learned that the state courts were doing away with paper briefs, we had this thing, this binder, this thing that did plastic binding of Velo binder. He threw that machine out that day, he was so excited. All right, let me ask you a related question on the issue of hyperlinked briefs with authorities. There are a lot of tech products out there. I happen to like clear break, but there's others that will link pieces in briefs. So when you submit it to a court, the research attorney or the judge could just click on the link and a case comes up. I wonder from an IT security point of view. Does the court have any preference about receiving briefs with case law links? Or is there no official policy? Also

Tim Kowal  32:38  
record citations that are hyperlinked? Right, right. Yeah. So

Susan Gelmis  32:42 
Well, there's two different issues here in terms of authorities, CMAC app actually has a built in I mean, it was an enhancement at some point, but a built in case links that we can turn on so that when the judges get their case, materials, it's automatically those are things ATMs will we don't have that yet. But we are looking into what is the best way to provide that in a CMS because our judges really love it. So I don't think we want the parties to do that. Because then if you're using a different program than what we're doing, and we're already providing it, that you know, and there is something about uploading PDFs. I know certainly in cmec, if we made it so that you can't upload PDFs that have, I don't remember what it's called, but some kind of live, like, if you're uploading a fillable form PDF, you have to flatten it first before you can do it. I don't know whether that's as important to na CMS, but certainly in cbcf, we didn't want that. So. So I think for citation links, authority links, you should not worry about those because we are going to find a way to provide those in a CMS for our judges. And we already have that for cmcm. Record citations, if you want to link to your excerpts, all well and good, assuming we don't have this band in a CMS that we haven't seen these yet. Well, we don't want the live. I forget what they're called. So I apologize for that. But however, you can actually link to the record. Because for the same reason I mentioned below and this is why we require excerpts of record when you file a brief because the district court is a completely different system. Right. Right. Right. And when we link from inside the court, when one of my judges links to the district court through a docket sheet, in our case from either of our systems, it takes them through public pacer to get there, so you can't actually link directly to the record, because so they can't even access sealed filings from the district court or restricted by links directly through our links. So it's, you know, Will that ever be changed someday? I hope so.

Tim Kowal  34:56 
Okay, interesting. So there, but that's that except that maybe to, to bring back to Jackie a clear brief when we talked about this, because she's she's talked with clear beef has talked with, with courts and some courts are using that product, it puts all of the record, you know, the attorney would upload the brief and the record to the clear, brief, secure server, and those links would be live there, it wouldn't be taking you back into the PACER system or the district court EC EMF System, or ecfcs. system. But it's an interesting topic. So so that's that's all still in play. And different courts are figuring out their own ways of doing that. And but but you do, I thought it was interesting. You said that the courts are using it does have some sort of built in way that it is creating links to authorities you said or or but but not to record sites yet not to records. Okay. So the sort of clerks in the in the judges can just directly click on the authority that cited in it. And so it's very accessible to them. Yeah. Like

Susan Gelmis  35:55 
I said, that's in cm ECF. We're working on figuring out how to get that in a CMS. But yeah, yeah, yeah.

Jeff Lewis  36:01  
Assuming it's a real case, not a made up one by Chachi. Let's let's step away from tech and talk a little bit about before we run out of time, you had some background with the Ninth Circuit's pro pro pro bono program, can you tell us a little bit about what that program is and what opportunities there might be for appellate lawyers to get involved?

Susan Gelmis  36:22 
Absolutely, I was in the right place at the right time in the early 90s, to work with our then Chief Judge Wallace, and the bar to create the pro bono pro program as it currently exists and has since 1993. Before that, what we basically had was a law school in Idaho that had a clinic that wanted some experience. So we would just sort of like randomly throw them some cases, which was not very helpful to us or to them. And so what we ended up with, and now we have a lot of law school clinics that participate as well around the circuit, but we also have lawyers who sign up with, we have four, I think, private attorneys who out of the goodness of their hearts service coordinators in their location, there's one LA and one in San Francisco and one in Seattle. And maybe there's one other one I don't remember now, and they maintain the email lists of attorneys for their area, and you can sign up for more than one, we have people outside the circuit and sign up for these, although we don't pay their travel to oral argument if they're coming from outside the circuit. But basically, we agree that we will give them a case that someone at the court, whether it was a staff attorney or a panel of judges has decided would benefit from an attorney's involvement. And we don't force attorneys on unwilling clients. So if they say, No, I don't want a lawyer, then they don't get a lawyer. And, and basically, we promised the lawyers that they get oral argument, which if you know anything about our court does not happen a lot. We have maybe 1400 pieces that are argued early every year, and we have, you know, nine or 10,000 cases that are decided or closed in one way or another. So so the pro bono lawyers, you know, get a guarantee of oral argument. And our judges have agreed from the beginning, that they will not submit a case on the briefs, even if they otherwise would, if there is a pro bono attorney. So it's a it's a win win for everybody. I know our judges really appreciate. They usually, you know, do a little shout out from the bench, thanking them. And you know, they can still get attorneys fees, if they're entitled to them under a statute or whatever. There's no prohibition on that. Yeah,

Jeff Lewis  38:35 

that's a dumb question. How do the judges know it's a pro bono case? Is there something on the cover? Do they have a list? Or how do the judges know oh, this keeps coming up? Two

Susan Gelmis  38:43 
ways. One is that we have case management attorneys who who do a like a summary of each case that gets fully briefed before it goes to some kind of American panel. And it will say on that summary with all of our judges look at for a variety of things. Pro bono do not submit on the brain. So that's one way there's a flag on the docket, the internal docket sheet that says pro bono, but also when my courtroom deputies prepare day sheets for the panel for hearing, they will note, you know, which attorneys or government attorneys state or federal, they'll know pro bono or appointment under the Criminal Justice Act so that the judges know who's in front of them and where they're from.

Jeff Lewis  39:23 
I see. Okay, and if an attorney wanted to get involved with this kind of case, what kind of cases qualify for this pro bono?

Susan Gelmis  39:30 
Any pro se case that is not criminal because those qualify for appointment under the Criminal Justice Act? Usually a habeas corpus appeal if we're going to appoint counsel would be under the Criminal Justice Act. So it's usually you know, pro se civil cases prisoner appeals, prisoner civil rights, immigration cases. Those are sort of the most common but any any civil case where there's not a lawyer for the for the interesting? Do you have any,

Jeff Lewis  39:57 
you have any favorite war stories like Epic victories or unmitigated disasters or anything like that, that came from the pro bono program, or any cases you're most proud of in terms of assisting somebody get a lawyer, you

Susan Gelmis  40:08 
know, I mean, it's hard to say, off the top of my head, because I have been out of that business for a long time. But my most recent favorite story is that we have a local immigration lawyer who does a lot of pro bono work, who called me, you know, on a Friday afternoon at like four o'clock and said, this immigration petitioner is detained. He's pro se, his case was dismissed because he didn't file a brief. So the mandate issued and he's about to be put on a bus. And there's a lawyer at his detention center who's trying to help him. And I'm going to take the case pro bono once it's reopened, but how do we get an emergency motion to reopen this case to you, when he's not able to sign it? Can we file it on His behalf before we, you know, we can't appear yet. And normally, you know, anyway, the real point of this story is that our clerk's office and this comes from the top from the clerk and her predecessor. But it is pretty extensive that we our goal is to be helpful. We are a public institution, and we're trying to be helpful. So I worked with this guy to, you know, have him submit a motion by email, because he couldn't file it electronically, because he wasn't Counsel of record yet. And to include a declaration about why the guy couldn't sign it and why he wasn't counsel yet. And I got it to the staff attorneys, so that they, you know, as an emergency, so they could bring it to a panel, the judges issued an order that night, I stuck around to file it. And so the guy didn't get removed, his case got reopened. And a year later, this lawyer reached out to me and said, I just want you to know that after the appeared for this guy, we got the government to create a remand his case to the agency. And he was granted relief under the Convention Against Torture, which is very hard to get very, very, especially because I think he was from Mexico or someplace like it's really hard to get that really. And so, you know, that's a pro bono lawyer just trying to do a good thing. And the court tried to be helpful and, you know, not tripped over rules that are there for a reason. But that, you know, anyway, that's my favorite worst story of recent I don't everything else is. That's great.

Jeff Lewis  42:22 
That's, that's great. Well, I gotta tell you, one of the things that attracted me to the practice of appellate law, mostly state court, but I've had the same experience in federal court is that the clerks and the staff are really friendly. And on the lawyer side, they really want to do whatever they can to get this dispute in front of judges or justices to hear you don't let's just say you don't always feel that friendship and positive feeling from from trial level state clerks, I really enjoy that practice that aspect of practicing appellate law.

Susan Gelmis  42:52 
Yeah, that's definitely true.

Tim Kowal  42:55 
All right. Well, Susan, we want to thank you again, for for joining us. Are there any other reflections that you have in in ending our discussion today, from your time as a clerk in the Ninth Circuit, anything that, you know, that would help our listeners who maybe don't practice in the ninth circuit with regularity, but something that tends to be sand in the gears in the in the Ninth Circuit, common or persistent errors that that attorneys make? Or were just any other any other reflections you have in closing here?

Susan Gelmis  43:28 

I mean, I think I would, I would say that I really mean it, that we are a public institution, we take that very seriously. And we want to be helpful. So if you go to our website, I think you will find a lot of resources and information, as well as an email address to reach the clerk's office, where my staff are very friendly and diligent and quick to respond, to give you the information you need. So, you know, I'd say give us the benefit of that doubt, and let us help you, but you know, be respectful at the same time. And those, I don't know, there's probably nobody listening to this podcast, who I would want to tell like, you know, when we email you with information, please read it. Those things are not those are not the people who are listening to this podcast, right? Because so, you know, but but I do, I really do encourage people to look at our website, you can find information about how to sign up for the pro bono program, you can find all kinds of resources CLE programs that we've done, where we've posted, the materials and the video of the presentations, outlines that we provide just a lot of information that we we put there for your benefit, because we want you to be able to, you know, make successful use of the court.

Tim Kowal  44:45 
Well, thank you and that and that does come through. I echo what Jeff said that, that my my persistent impression of the Ninth Circuit clerks is that they that they do want to help you they want your your experience with the court to be a success. is not not in the sense of the merits necessarily but but getting to the merits. Rather than having your filings rejected or some other technical difficulties.

Susan Gelmis  45:10 
I would just close on this one thing. The first thing I tell all new clerks, office employees, because I do an orientation session for library wherever they are. The first thing I tell all of them is we resolve as a court nine or 10,000 cases a year, the Supreme Court hears maybe 14 or 15 of them in a year. So we are the court of last resort, or all the rest of those people. And, and I tell them that so that they will take it seriously and understand that our all of our jobs here are to get the judges what they need, so they can do their job. That's just what it is. So,

Tim Kowal  45:47  
all right, Susan Gelmis thanks again, Jeff. That's going to wrap up this episode. We're going to thank case text or sponsor once again for sponsoring the podcast each week when we include links to cases that we discuss we use casetext's daily updated database of case law statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on casetext basic research at casetext.com/calp. And

Jeff Lewis  46:13 
if you have suggestions for future episodes, or you want to email me an explanation of what Java is, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for a successful appeal when preparing for trial. All right, see you next time. You

Announcer  46:27 

have just listened to the California appellate podcast, discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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