Modern American appellate practice involves a great deal of writing and little oral advocacy. But this was not alw ays the case. American ap pellate courts in itially opera ted in much the same way as their English counterparts, deciding cases based almost entirely on oral argume nt. Early on, the United States Supr eme Court allowed unlimited time to couns el to argue their case.
Arguably the most important of the Tannaim, or early Jewish sages, Akiva lived during a crucial era in the development of Judaism as we know it today, and his theology played a major part in the.
It was not until 1849 that the Suprem e Court imposed a time limit on oral argument, promulgating a rule that year limiting oral argument to two hours per side. So what drove this change in American appellate practice away from presenting cases orally toward s a heavy relianc e on written briefs? It’s difficult to sa y.
After all, Englis h and Australian appellate courts continued the tradition of relying primarily upon oral argument until very rec ently. Writing in 1994, one author stated: To this day, in England practice before the Court of Appeal is oral, and the only written item is a short “notice o f appeal” giving a one to two s entence desc ription of a legal point to be asserted without revealing the legal argument to be made. The practice of written legal argument, which. Whatever the mo tive for this “Ame rican innovation,” advances in tec hnology helpe d make it possible. New technology no doubt drove muc h of what was expected from appellate attorneys in terms of their written products—just as it does today.
For example, at the same time that American lawyers were beginning to produce more polished and extensive appellate briefs, the typewriter was being refined by American inventors and American companies. American inventors named Christoph er Latham Sholes, Carlos Soule, and Carlos Glidden (a lawyer) were granted a patent for a typing machine in 1868. They would later sell their paten t to E. Remington and Sons (which.
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Became the R emington Arms Company). And in 1873, Sholes in vented the QWER TY keyboard we still use today on our co mputers. Remington, IBM, and other American companies would soon dominate the office equipment business.
Not only did an American lawyer have a hand in inventing the typewriter, but an American l awyer also invente d another piece of offic e equipment es sential to the legal profession toda y: the photocopier. Chester Carlson, the inventor of photocopying, was a patent attorney at the pate nt office in New York.
Because he was arthriti c, he found the process of copying documents painful, which motivated him to conduct experiments with “electr ophotography” in his kitchen. He applied for a pate nt for this proc ess in 1938.
Carlson later h ad a hand in renaming the process “xer ography” (derived from the Greek words for “dry writing”) and Xerox Corporation would sell the first xerographic machine in 1949. Within twenty ye ars, the federa l appellate courts embrace d photocopies in lie u of directly typed or typese t briefs. In 1967, the Advisory Com mittee changed Federa l Rule of Appellate Procedure 32 to expressly permi t them. Now, all of the federal appella te courts have electroni c filing.
And many state appell ate courts have implemented electronic filing or plan to implement electronic filing in the near future. The most recent es timate is that electronic fili ng will be available in the Supreme Court of Texas and the two Houston courts of appeals in October 2010—with deployment to other Texas appellate courts soon thereafter.
Some advocates have pushed the limits of these new technologies to give their clients an edge. Consider a few exam ples from the Supreme Court of Texas. In 1888, an atto rney for Walgreen’s filed a typeset, bound brief printed on high quality paper along with a professiona l photographer’s photograph of the Walgreen’s store at issue, while Walgreen’s opp onent filed a brief ty ped on thin onion s kin paper. In more recen t times, Pam Baron inserted a photocopied image of a trial court’s erroneous postcard notice into her application for writ of error to catch the Court’s eye.