• April 20, 2015

Minnesota Judicial CenterJustice G. Barry Anderson spoke on e-filing of court documents at a CLE a while back.  One topic he mentioned was bookmarks in e-filed PDFs.  Here are some of his thoughts now on the subject.  Shared with his permission:  :

“First, the usual and customary caveats—I’m writing solely for myself, we’re in the early stages of experimenting with what electronic briefing looks like, other members of the Court may have different views and, to the best of my knowledge, there are no rules that speak with any directness on this issue.  That day will come, but it’s not here yet.

 All of that said, I see no problem with reasonable use of bookmarks as part of the lawyer’s box of persuasive tools.    Bookmarking a PDF brief is, in part, an outline of the lawyer’s argument.   And the outline of the lawyer’s argument is set out, in the first instance,  in the table of contents of the brief and is, of course,  in persuasive form there.  ( E.g., “The District Court erroneously decided….”).     I see no reason why a particular weakness in an opponent’s argument couldn’t be bookmarked, just as it might be noted as a subhead in the argument outline itself.

The more complicated the table of contents/outline/bookmark of course, the more an advocate runs the risk of providing so much information to the reader that the original goal of persuasion becomes obscured.   Most briefs, at this point in our transition to ecourt, are not bookmarked and when I create bookmarks, I’m looking to make it easier for me to get to the heart of the argument, not necessarily replicating the advocate’s table of contents in its entirety.    So, for example, I might not bookmark all of the sub arguments, or I might have a separate bookmark that notes that this particular page or point is the heart of the advocate’s rgument (or it might say something like, “I have no idea what the point of this is—ask about it at oral argument”).

 So, I think there is room in looking at this issue to think persuasively about whether, and how, to bookmark a brief.    And, of course, all of the usual advice about advocacy applies with bookmarking as it does with all other parts of advocacy (e.g., state the argument fairly, acknowledge weaknesses, cite authority accurately, etc).

Barry Anderson

Associate Justice

Minnesota Supreme Court

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