If he'd been in practice fifteen years ago, Xemplar David Mills may never have had his day at the United States Supreme Court - because most likely, he would have never opened his own firm.  Back then, the costs of starting an appellate practice would have been a reach for a 33-year-old law graduate with a small amount of savings.  Mills would have needed to spend several hundred dollars a month on computerized legal research tools.  Without PACER, Mills would have had to trek down to the courthouse to pull a court file (at a cost of .25 cents a page to copy) to file his briefs.  And without the Internet, Mills' marketing scope would have been confined to Ohio instead of having a regional and national reach.  With these hurdles, Mills may just have stayed put at his comfortable big-law job.

Today, of course, times have changed.  Technology has decimated the cost of opening a practice and conducting legal research.  And technology has also fostered mobility making it feasible for Mills to run a lean operation from a spare room in his apartment.  And with the rise of blogs which cover new issuances for just about every appellate court in the country and feature opinions from practitioners and academics alike, a solo practitioner in the middle of the country has access to the same level of sophisticated analysis as a seasoned big law partner.

Yet the more that the practice of appellate law changes, the more appellate courts remain the same, completely impervious to the transformation outside their marble walls.  For example - though federal courts have been at the forefront of the e-filing revolution, the federal appellate courts have been a bit slower to follow suit.  Moreover, even with e-filing, many federal appellate courts still haven't reduced the need for multiple paper copies, including the joint appendix which for some matters, can run thousands of pages.  And while professional printers aren't a formal requirement, some courts still insist on complicated formatting that is better handled by professionals than in-house.

Federal appellate courts aren't exactly in line with the times when it comes to multi-media either.  As of March 2011, eight of thirteen federal appeals courts (and the Supreme Court as well) provide online access on-demand to the audio of oral arguments.  Video of oral arguments are even more difficult to come by, with only the Ninth Circuit making select video available.  Broadcasting appellate arguments could serve as an important teaching and training tool for law students and new solos. Yet, presumably, the courts still believe that we live in an age where lawyers learn skills through apprenticeship.

Jurist Roscoe Pound famously said, "The law must be stable.  But it cannot stand still."  Even as change rocks the legal profession, opening up opportunities for solos like David Mills who are willing to seize it, fealty to precedent, inertia or just plain-old fashioned obliviousness ties our judicial system to the past. 

Roscoe Pound never warned what would happen if the law stands still.  I fear that if our courts do not keep pace, we may soon find out.