Appellate Overload: Fifty Thousand Appeals and Counting
By Tami D. Cowden

“When the case is proved, and the hour is come, justice delayed is justice denied.” —attributed to British statesman William Gladstone (1809-1898).

What would William Gladstone think of litigation today? There can be little doubt that the justice achieved in resolution of a lawsuit can be a long time in coming. Nevada strongly encourages plaintiffs to bring their lawsuits to trial within five years, but it is not unusual for trials to occur six, seven, eight or more years after the suit was first filed.

In business, a delay of even five years can result in frustration and lost opportunity. Our court system has taken creative means to speed up resolution of commercial disputes. Mandatory arbitration helps resolve matters where less than $50,000 is at issue. Additionally, a special “business” court is available for litigation of commercial disputes. The short trial program, too, often presents a speedier resolution, as litigants can leapfrog over longer pending cases if they can be tried on shorter notice and in smaller allotments of time.

Still, even with these innovations, the wheels of justice can grind at an agonizing pace. And once a trial is done, and a judgment issued, an appeal can delay the final outcome still longer. Once appeal is taken, resolution is once again years away.

And therein looms a crisis of delayed justice in Nevada.

Just last year, the Supreme Court of Nevada achieved a milestone, accepting its 50,000th case since the very first appeal was filed in1865. Fifty thousand cases over the course of more than 140 years might not seem too astounding. After all, that comes out to an average of fewer than 360 cases per year. Seven justices could surely resolve that many cases in a snap, right? (Ahem. Just to compare, the nine-member U.S. Supreme Court issued 68 merit decisions in the 2006 term that finished in June of 2007). However, Nevada’s Supreme Court is not required to resolve a mere 360 cases per year. The court receives many more. While it took 112 years before the Court saw the first 10,000 cases filed, appeals have piled up at a much more rapid pace since then. Case number 40,000 was filed just six years ago. More than 2,000 cases were filed in each of the last two fiscal years. As one of the Court’s press release put it, “the Supreme Court must now handle in five years the number of cases it handled during Nevada’s first 112 years.”

The justices strive mightily to meet that challenge, and make truly astonishing progress. Among their recent published opinions have been several cases for which the notices of appeal had been filed just over two years ago. They’ve even managed to whittle down some of the backlog. But there’s no respite on the immediate horizon. Filings at the district court level continue to increase, a fact acknowledged by the 2007 Nevada Legislature’s approval of increases in the number of judges in both Clark and Washoe Counties. Increased district courts cases, with a greater number of judges, mean more cases will reach judgment each year. That can only mean an increase in the number of appeals. But regardless of the number of appeals filed, Nevada has only seven justices to review those appeals.

Longer delays in justice are inevitable.
Far in the future, help may be available. In addition to adding to the number of district court judges, the 2007 assembly also took the first step toward relieving that inevitable backlog of appeals by approving a constitutional amendment to create an intermediate appellate court. That new court, if approved again in 2009, and then approved by the voters, will certainly relieve the justices of a portion of their formidable burden. Indeed, ideally, such a court would focus on review of error. That would free the Nevada Supreme Court to focus on matters of constitutional dimension and other issues involving review of public policy. Such is more typically the purview of a state’s highest court.

In the interim, however, the Nevada Supreme Court must work to review and resolve every claim of simple error or abuse of discretion brought before it, in addition to matters requiring constitutional interpretation. And appeals pile up. Gladstone would surely be horrified at the resulting delay.

Or perhaps not. After all, Charles Dickens, a contemporary of Gladstone’s, wrote Bleak House, a novel in which a lawsuit, purportedly inspired by an actual will dispute, provided work for successive generations of attorneys.

Nevada is not quite so far behind as that.
Yet.

Tami D. Cowden is Of Counsel with Kummer Kaempfer Bonner Renshaw & Ferrario, where her practice focuses on appellate and complex civil litigation. Visit Tami’s blog at www.AppealingInNevada.com or e-mail her at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it This article originally ran, in substantially similar form, under the title “Appellate Overload,” in the September 6, 2007 issue of the Las Vegas Business Press.

Appellate Practice in the Information Age
By Cam Ferenbach and Robert Hernquist

The rapid progression of technology in recent years has had a profound impact on the legal profession. Researching the facts of a case and the applicable law is now predominately performed on the Internet by utilizing services such as Lexis and Westlaw, Secretary of State websites, and countless other resources. Similarly, correspondence with clients and opposing counsel is often transmitted via e-mail, rather than the traditional letter or phone call. This technology has also impacted attorneys’ interactions with the justice system itself—from the filing of a complaint, to discovery and motion practice, and even through trial—attorneys often utilize tools such as e-filing, document storage databases such as Summation, and audio visual tools. These changes are all considered to be improvements; they make us more efficient, and allow us to maximize our resources and present the best case possible on behalf of our clients. While both the federal and many state trial courts have implemented these tools, the Nevada Supreme Court and the Ninth Circuit still lag somewhat behind, and have not yet adopted e-file systems. Nevertheless, the web sites for both of these appellate courts offer other valuable resources. All indications suggest electronic filing of appeals and supporting briefs will soon be commonplace in both our state and federal appellate systems.

Audio files of appellate arguments
On September 13, 2007, the Nevada Supreme Court joined a growing trend amongst courts across the country when it provided the oral arguments in Halverson v. Nevada Commission on Judicial Discipline, 123 Nev. Adv. Op. No. 48 (Nov. 1, 2007) on its website. (http://www.nvsupremecourt.us/). The day after that case was argued, audio files of the arguments were available online. News Release, Supreme Court of Nevada, Administrative Office of the Courts (Sept. 12, 2007). Since then, the Court has continued this practice by posting audio files for all cases argued within the previous 30 days. The files may be listened to on a computer, or downloaded to an MP3 player.

In addition to the audio files provided by the Court, each of these recent decisions also has a “Details” link, which presents additional information such as the names of those appearing before the court, the length of the argument, the start times, and the name of the speakers. The website includes instructions for listening to the audio files, downloading the files, and converting the files to MP3’s. The Court intends to continue and improve upon this technology—Chief Justice Maupin recently stated the Court hopes to eventually offer live web casts of oral arguments with both audio and video. Courts in twenty-one states currently offer live web casts of proceedings, including Arizona, Georgia, Indiana, Maryland, New Hampshire, North Dakota and West Virginia. The website for the Ninth Circuit Court of Appeals also offers audio files of oral arguments. (http://www.ca9.uscourts.gov/). The Ninth Circuit files may be searched by case number or the date of oral argument, and the site currently offers case arguments dating back to 2004.

Audio files of prior arguments are a wonderful tool for appellate litigators for a number of reasons. Hearing previous arguments and the questioning techniques used by the same jurists one will be appearing before are obvious aids in the preparation of one’s own case. Having the audio available after the argument is also an asset—it helps us identify where we can improve in the future, or if particularly illustrative, the file could be shared with clients, or even posted to one’s online biography as a marketing tool.

Additional resources available on appellate websites
The Ninth Circuit and Nevada Supreme Court websites offer a number of other tools and information. Most practitioners are aware of the advance opinions available on these pages, but many of the additional features are overlooked and underutilized. The Ninth Circuit provides local rules, the status of pending en banc cases, information about its pro bono program, and a “how to page” which clarifies and integrates many of the local rules and explains things such as how to file a petition for review or perfect an appeal. On an “FAQ” page you will find quick answers to many of those technical questions we all need to consult, regardless of how long we have been practicing, such as: (1) the number of copies which must be provided to the court, (2) filing fees, (3) page limits, and (4) what color you must use for the cover of the third brief in your cross appeal (the answer is yellow). The Nevada Supreme Court’s website also provides numerous resources, such as an oral argument calendar, sample forms, court rules, a directory of Nevada courts and judges, and a news section.

The future . . .
Local practitioners should become familiar with these websites now, because additional features of more significant impact will likely be adopted soon. Most lawyers are familiar with the CM/ECF and PACER systems, which are used for the filing and review of documents in the federal district courts. Nationwide, federal and state appellate courts are adopting similar systems. The American Bar Association has lobbied for such changes, and has included current trends in technology in its ABA Standards Relating to Appellate Courts, Standard Nos. 3.90, 3.91, 3.92 and 3.93. Appellate courts across the country have implemented technology used to improve the filing and briefing of appeals, submission of the record, and even the argument of the case. Electronic filing, e-briefs and possibly even remote arguments are the wave of the future.

E-filing poses many benefits for courts and practitioners. It eliminates many of the costs associated with copying and postage, reduces storage, and improves efficiency in locating and searching the documents. These benefits are exponentially increased in appellate cases, where the filed documents and record often consist of hundreds of thousands of pages.

This fall, the Nevada Supreme Court requested proposals from software vendors for the implementation of a new Case Management System (CMS). Supreme Court of Nevada Request for Information No. 10-1 (Aug. 10, 2007). The background information provided in the request reveals the Court has already begun the first phase of an e-filing system, which allows the user to enter the required data and upload documents online. The requirements for the new CMS include the ability to integrate documents filed electronically. Although the Nevada Supreme Court does not currently allow electronic filing of appeals or briefs, it is clear from their request that this will soon change. Id.; NRAP 25, 32. The Court’s proposed CMS would also provide a service similar to PACER and allow attorneys and the public to access documents filed with the Court.

At this time, the Ninth Circuit does not allow e-filing either. Although the Federal Rules of Appellate Procedure permit electronic filing of papers pursuant to local rule, the Ninth Circuit still requires hard copies. Fed. R. App. P. 25(a)(2)(D); 9th Cir. R. 31-1. But this will likely change. For example, the local rules do allow electronic service of documents with the other party’s consent. 9th Cir. R. 25-3. The Ninth Circuit’s website now invites registration for the CM/ECF system.

Once e-filing becomes universal, the next step could be interactive electronic briefs, which have already been allowed by some courts. In fact, North Dakota requires briefs to be submitted on a diskette. N.D. R. App. P. 31(b). Electronic briefs can include hyperlinks, allowing the reader to simply click her mouse in order to access the cited authority or record, as well as video of testimony or exhibits. This eliminates the need of pulling cases from reporters or online services or fumbling through files or boxes to locate documents contained in the record.

This is an exciting time for the practice of law. As technology rapidly becomes more and more complex, our profession will continue to change to accommodate or take advantage of it. For some, this change will be too rapid. Others will demand efforts and expenditures to place us on the cutting edge. Nevada courts have wisely formed bench-bar committees which address these issues. We can look forward to the accelerated impact of technology on our profession. Hopefully that impact will be a positive one.

Cam Ferenbach is a shareholder at Lionel Sawyer & Collins in Las Vegas. His practice focuses primarily on commercial litigation involving employment, real estate, insurance coverage and other business-related disputes. Cam is a member of the Board of Governors of the State Bar and has served on a number of law-related boards and panels over the years. Robert Hernquist is an associate in the Litigation Department of Lionel Sawyer & Collins in Las Vegas.