Arts & Crafts of Litigation: Hyper about hyperlinks?
When, as a busy litigator, I first heard years ago about possible hyperlink and bookmark requirements, my hair stood on end for fear of extra work and the unknown. Fast forward, although hyperlinks are not universally required – in trial courts limited to the commercial division – I nonetheless hyperlink almost everything in sight.
Hyperlinks are links to external URLs (website page addresses), while bookmarks are links to reference points within the same document. We discuss hyperlinks here.
A confluence of rule amendments, e-filing and the pandemic brought the topic to the fore, fundamentally changing the way I prepare motions: hyperlinks instead of exhibits where possible, and to sources. important.
In 2014, CPLR 2214 (c) was amended to allow reference to NYSCEF document numbers for documents rather than as exhibits:
Unless the court rules provide otherwise, in an action filed electronically, a party who files documents as part of a motion need not include copies of documents that were previously filed electronically. electronic file with the court, but can refer to it, giving the file numbers on the electronic filing system.
The effect was, however, arguably minimal, due to the court exception, as few court documents were undocumented and most required courtesy “working copies”. The number of paperless coins increased gradually, then sharply with the pandemic, when the courts in March 2020 moved away.
Adding to the mix, Commercial Division Rule (CD Rule) 6 (c) came into effect on November 16, 2020, requiring NYSCEF references to be hyperlinked:
Each memorandum of law or other document submitted electronically that cites another document previously filed with the NYSCEF must include a hyperlink to the NYSCEF record entry for the cited document allowing access to the cited document via the hyperlink. Hyperlinks may not provide access to documents filed under seal or otherwise not placed in the public file. Cited documents filed with the NYSCEF that are accessible via bookmarks in the electronically submitted document do not also need to be hyperlinked.
(A0 / 133/20, September 29, 2020, amending Rule 6 of Article 202.70 (g) of the Uniform Rules for Supreme and County Courts, 22 NYCRR §202.70 (g)). The rule also allows the court to require hyperlinks to additional sources and encourages parties to create hyperlinks even if it is not necessary:
The Court may require that memorandums of law submitted electronically include hyperlinks to court decisions, laws, rules, regulations, treaties and other legal authorities cited in legal research databases to which the Court may request. Court has access to or in the websites of state or federal governments. While the Court does not require such a hyperlink, parties are nevertheless encouraged to hyperlink such quotes, unless the Court directs otherwise.
DC Rule 6 (c) (1). The court may exempt any party who certifies in good faith an inability to comply without undue burden (rule CD 6 (c) (2)).
Finally, and adding to the confusion, the rules imposed on practitioners earlier this year adopted various commercial division rules in the Supreme Court and County Court civil rules (amending the Uniform Civil Rules, 22 NYCRR §202 , et seq. (AO / 270/2020, December 29, 2020, from February 1, 2021)). See Brian Graifman, Updated rule requirements, NYLJ, July 8, 2021, at 4.
This latest round of rule changes prompted many colleagues to reach out to me, panicked at the approach of a deadline, seeking a quick response as to whether a hyperlink was needed. While not usually necessary, since hyperlinks are so easy and helpful, I would respond that they should be considered.
Hyperlinks are easily added to a Microsoft Word document before converting to PDF. Here’s how: copy the URL of the source document (web address). In NYSCEF, you can open the NYSCEF page and copy the web address, or as a shortcut, in the list of online case documents, hover the cursor over the document description (not the document number), click with the button right and copy. Then go back to the Word document, highlight the phrase to act as a link. I usually use the phrase “NYSCEF #__” (or if you are approaching a word limit, “NYSCEF #__”, which counts as a single word). Right click on the highlight, scroll to “Link” and insert the URL by pasting it into the box. The measured time: less than 20 seconds. It’s so easy.
Adding a hyperlink to a PDF document is more complicated and may require some dexterity, but sometimes cannot be avoided, for example when a necessary link belongs to the same page scanned for you with the signature of your customer. You will also need an optimized PDF program such as Acrobat Adobe Pro DC. From Edit PDF mode (also accessible via the toolbar), navigate to the “Link” drop-down menu and choose “Add / Edit Web or Document Link”. This turns the cursor shape into a crosshair, and with that, pick a corner of the desired area, left click and hold while dragging the cursor to create the boundaries of the link area. Then from the Link Type drop-down list, I suggest selecting “Invisible Rectangle”. In the Link Action part of the dialog box, choose “Open a web page” and “Next”. Enter the external URL link in the “Enter a URL for this link” dialog box and “OK”. Exit Edit mode by clicking on the X at the top right.
Whether in Word or in a PDF, hovering the cursor over the hyperlink should show the presence of a hyperlink, and of course clicking on it while connected to the web should show the result to test the hyperlink. Tutorials can be found on YouTube, one of my favorites being Erin Wright’s How to create external links in PDF files with Adobe Acrobat (YouTube, September 5, 2018).
New methodology for motions: hyperlinks instead of exhibits
With judges and court staff now accustomed to working online and remotely, without working copies, clicking a link to a cited source should be a welcome shortcut. Exhibit A of the new protocol is that I try to avoid Exhibit A or any other room if possible.
When crafting queries, instead of compiling mounds of evidence from past NYSCEF filings, my current method is to provide NYSCEF document numbers as references per CPLR 2214 (c), hyperlinked. While I still find it helpful to include a list of exhibits, usually near the start of a lawyer assertion, I now provide a list of NYSCEF documents cited in some semblance of organization (e.g., pleadings, orders etc.), with hyperlinks and continue with a list of new documents – formal pieces that are assigned sequential numbers or letters as in the past.
But I don’t stop there, as I often withhold electronic delivery of my law note until the other documents are filed electronically, then add any hyperlink to the law note word document. to references to newly transmitted electronically documents – affidavits, exhibits, whatever – and only then finalize and electronically send the memo with hyperlinks hyper-memo of law.
Whether there are downsides to this new protocol that avoids formal exhibitions remains to be debated. Are there any judges or users who want everything presented or printed the old fashioned way, with exhibits as a necessity of the organization? May be. But for now, carefully throwing away the wind exposure tabs, this is my new movement protocol. We’ll see how it goes.
Brian graifman is a partner at Borah, Goldstein, Nahins & Goidel, PC, and former co-chair of the New York County Lawyers Association’s Committee on the State Supreme Court.