When I think of the intersection of law and technology, I immediately consider the manner in which the legal system grapples with metadata, e-Discovery, data privacy, Fourth Amendment rights as they apply to GPS tracking, and countless other issues. But emerging technologies also impact the practice of law. Consider the airplane’s facilitation of mail delivery. Photocopiers. The fax machine. Electronic mail. Timekeeping. Portable devices that allow for almost constant communication with clients and colleagues.
And the simple PDF.
For 15 months before I started law school in 1995, I enjoyed my most rewarding professional experience while working as a paralegal in the Supreme Court and appellate litigation section of Sidley Austin (“Sidley”). I don’t think most paralegals would describe their jobs in such terms, but my time at the firm was truly special. How could I have bested working with extraordinary attorneys on five Supreme Court cases—United States v. Lopez, BMW v. Gore, Missouri v. Jenkins, Romer v. Evans, and U.S. Term Limits v. Thornton—that I would study during my very first semester Constitutional Law class?
My job was far from glamorous. I edited, cite-checked, and made sure that all briefs conformed to the infamous Bluebook, the standard style manual for legal citation. I loved it and learned.
Let me place that time period in technological perspective. Word Perfect was a racecar. I found jarring the transition to Microsoft Windows. We had a rudimentary—but no doubt advanced for the time—email system, but I can’t recall ever having received an attachment. And there were no cell phones and thus no text messages. As a result, for example, I was paged so frequently on the firm’s overhead intercom system—“Ben Kerschberg, Ben Kerschberg, 8270, please,” sang Ms. Pat Rose, the main receptionist—that I still remember the phone extension of every attorney with whom I worked, although I can’t remember my own.
The prevailing technological state of affairs had a profound impact on my daily work, especially my interaction with the U.S. Supreme Court and a venerable institution of the so-called Supreme Court Bar, Wilson-Epes Printing (“Wilson-Epes”).
Before turning to the process of preparing and printing briefs, let’s first take a look at Supreme Court opinions themselves. In those days, the Court issued opinions consistently on Monday, but I called every morning to see whether I needed to jump into a cab to make the trip from 1722 I Street (Sidley’s former offices) to the Court on Capitol Hill. The fare was $4.50.
Even when entering through the side door on Maryland Avenue, where the Clerk’s office is located, the Supreme Court humbles you with its presence. Knowing that I was heading to law school after my time at Sidley, I was awestruck each of the many dozens of times that I visited the Court. I still am. The hallway leading to the Clerk’s office always bustled when opinions were handed down. There were reporters waiting for landmark decisions so that they could meet deadlines. Attorneys and paralegals. Everyone was there. Mr. Williams, an affable gentleman who worked at the Court for years, handed out opinions in large stacks. Each person could get one copy of each opinion. And then everyone dispersed.
On a few occasions, my boss, mentor, and friend, Carter Phillips, the firm’s Managing Partner and then the head of the appellate section who to date has argued over 70 Supreme Court cases, asked me to call from the pay phones to relay the Court’s holding in a particularly important case that demanded his attention with the client, not to mention the press. I was always terrified of relaying that information improperly.
I would then return to the firm as quickly as possible and make one initial copy of each opinion for Carter. That alone often amounted to hundreds of pages. After finishing at the photocopier, I distributed by hand additional copies to a list of attorneys in the D.C. Office, as well as via FedEx packages to the Chicago and New York offices. This sometimes took most of the morning. My arms would tire.
The same process looks very easy today. The Supreme Court now issues its opinions online. One click and a PDF appears. For example, the Court only two days ago (on April 20, 2011) issued its opinion in Sossamon v. Texas, holding that States that accept federal funds do not consent to waive their sovereign immunity to suits for money damages under the Religious Land Use and Institutional Persons Act of 2000. The opinion is already available online. A paralegal today can check the Court’s website, download all desired opinions as PDFs, and then email them throughout an international law firm. They might say otherwise, but I think they have it easy.
Preparing Supreme Court Briefs at Wilson-Epes Printing
One of the great joys of filing a Supreme Court brief for Sidley was going to Wilson-Epes. Founded in 1941, Wilson-Epes was one of the last printers (until 2000) to use hot-metal typesetting. Their website defines the process as follows:
“Hot metal” printing is an equipment- and labor-intensive process where skilled linotype operators cast words into lines made of molten lead. After a page is printed, the lead is re-melted and used again for the next page.
I’ll return to this in a moment.
On the day before a Supreme Court brief was due, we would hand deliver a printed copy to the fine gentlemen at Wilson-Epes. There was no such thing as submitting an electronic version. They knew my fellow paralegal and me well, not to mention Carter since his days in the early 1980s at the Department of Justice’s Office of the Solicitor General, which supervises and conducts government litigation before the Court. They were always happy to see us and equally happy to start typesetting, an overnight process, before we returned at 5:00 the next morning.
“Wilson-Epes days” meant dressing casually and for good reason. After we helped ourselves to hot coffee that always made me think of miners drinking from tin cups during the Gold Rush—we loved every cup—galleys appeared. Wet type, hot off the press. Wet, hot galleys are precisely that, and any attempt to make it through the day without having one’s arms thoroughly inked was futile.
The process of proofing typeset text poses interesting challenges. If you find a mistake in one line, that entire line must be reset, which means that you have to proof it from scratch. New mistakes may appear that have nothing to do with your edits. Adding a sentence may require that an entire paragraph be reset. That in turns requires that each line in the paragraph again be reviewed from scratch, and so forth. This iterative process can take hours, especially with last-minutes edits submitted via phone and fax by both the firm and, occasionally, local counsel for the client.
In between “turns” of the galleys, Wilson-Epes was full of good cheer and even better stories. Ty, the foreman, could name every lawyer who had rolled up his or her sleeves to proof at the small table on the second floor while the presses churned below with an industrial sound akin to a giant loom. Many of these legal stars—Chief Justice John Roberts, for example—are household names.
All of this begs the question: Why is Wilson-Epes so special? The answer lies in my hands at this very moment in the form of a brief that Sidley filed on October 17, 1994 (so dated by the Supreme Court night guard’s hand stamp) in U.S. Term Limits v. Thornton, which presented the question whether States may unilaterally impose qualifications upon candidates for the U.S. Congress and restrict access to the ballot for certain candidates notwithstanding Article I of the U.S. Constitution, which sets forth qualifications for members of Congress. The Court held that they may not, thereby invalidating the congressional term limit provisions of 23 States.
The red Respondent’s Brief is beautiful. The cover is of the thickest stock in compliance with Supreme Court rules, which are as particular as they are strictly enforced. The inside is of similar quality. The paper on which the brief’s contents were printed feels like parchment. Nearly 17 years later, each letter and line is still raised above the paper—or impressed in the case of the cover—a reminder of the typesetting process. The feel of the capitalized BRIEF FOR RESPONDENT CONGRESSMAN RAY THORNTON is especially remarkable. Take a second to click on the image below to see just what I mean. It feels precisely the way a Supreme Court brief should. Its quality commands the respect of the reader and is commensurate to the weighty issues discussed therein.
There were—and today no doubt are even more, thanks to digital printing—alternatives to Wilson-Epes. On one occasion, we used a printer in the midwest based on the client’s instructions. It wasn’t remotely comparable. Sidley’s philosophy was that as long as the Solicitor General’s office maintained the tradition, so too would the firm. That wasn’t the only reason. Retired Justice John Paul Stevens was said to have strongly preferred reading Wilson-Epes briefs. Quality matters.
When we finished proofing—sometimes at 1:00 p.m., other times with just 30 minutes to spare before the Court’s midnight filing deadline, one of the typesetters would hand us a package wrapped in thick, reliable brown paper and meticulously sealed. It contained 40 copies for the Court, three service of process copies for each party, and extra copies for the firm (including a sentimental packrat paralegal who years later has dozens of briefs). That package was special. I always felt as though we were being handed a gift for the nine Justices of the Supreme Court – and indeed we were.
Wilson-Epes today accepts camera-ready briefs sent to them as PDF files. They will even file your briefs at the Supreme Court and take care of service of process. And while lawyers may file regular electronic versions of their briefs that are in turn typeset and formatted according to Supreme Court guidelines, hot-metal printing is a thing of the past. The costs (passed along to clients, of course) were simply too high, and so digital printing has replaced it.
I’m certain that the paralegals in Sidley’s appellate section enjoy their work today as much I did in 1994-95. The people made the experience, not the work itself or the technology that made it more challenging.
One special tradition—based on technology from a distinctly different era—was an exception. I will always be grateful that I was able to partake in it.