The Quiet Revolution in Brief Writing

Daniel Sockwell, writing in the Columbia Business Law Review, noted:

For lawyers writing briefs in the 21st century, a key part of knowing your judicial audience is knowing what device will display your brief. While some judges print briefs and read the hard copy, a quiet revolution is occurring: more and more judges are reading briefs primarily on iPads or other tablets.

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This quiet revolution in the way that judges read and use the electronic versions of what, in the past, were paper court filings is of great importance to the legal profession. Our effectiveness as advocates depends on how wisely and how well we understand and take advantage of the revolutionary changes that are occurring in how judges consider our written arguments. Lawyers tend to view the change from paper to electronic filing as simply the new normal, but it is much more. It requires lawyers to rethink their approach to the design and crafting of written court filings.

This article explores some of the issues raised by the transition from paper to electronic filing, including how paper texts differ from digital texts in subtle ways that have largely escaped broader discussion, why these differences matter, and what we can do in response to the challenges presented. This transition provides an urgent opportunity for us to transform our court rules and our digital court filings to better suit the court system’s shift from paper to electronic filing.

While our practice and experience causes us to focus on the situation in Florida, the questions raised are more broadly applicable. The issues raised here can be viewed as second-generation electronic filing issues common to all courts that require court submissions to be filed electronically. Presently, the Eleventh Circuit Court of Appeals, which has jurisdiction over appeals from federal district courts in Florida, still requires the submission of paper briefs and appendices, along with the electronic filing of those documents. The issues identified here exist throughout the nation, as courts make the shift from paper to electronic filing of court documents.

Paper Versus Digital Texts: Some Key Differences

How does the experience of reading a legal text only on a computer screen, either on a desktop or a mobile device, differ from reading that same text on paper? We all have personal experiences that inform our individual answers to that question. We know reading text on a computer can provide us with some significant advantages. For example, rather than look though an electronic document, page by page, to locate a discussion that would use particular words or phrases, we can use a search function and, with a few key strokes, find the very portion of text we seek. The varied assortment of functions that come with popular computer programs, such as Microsoft Word or Adobe Acrobat, can save time and increase productivity in the design, drafting, and the consideration of our court filings.

Electronic filing brings these and other benefits to the judiciary. Electronic filing makes it easier for courts to locate instantly and focus on relevant portions of documents, to copy and paste portions of memorandums or briefs the courts decide to include in their orders, and, because electronically filed documents are weightless, electronic filings free judges from the limits of a single physical work location. Now, judges carry complete case files on one light and slender mobile device, together with small libraries of applicable legal materials or links to applicable legal authorities online. This allows courts to consider cases at any place and time. Links within and between electronic documents provide even more benefits, such as eliminating some of the preservation issues that courts previously faced, and providing easier access to court filed documents by other lawyers and by the public.

The Clerk of the Fifth Circuit Court of Appeals recently announced that the court has already begun to take advantage of these new possibilities. Clerk Lyle W. Cayce announced that a change to Fifth Circuit Rule 28.2.2, relating to record references, “requires every factual assertion to be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed by the Clerk of Court.” He explained that the reason for the rule change was to assure that citations to the record on appeal made in the briefs could be easily recognized by a computer program that the clerk’s office uses to convert record citations in electronic briefs to hyperlinks, which directly connect the brief to the identified portion of the electronic record.  The program can also automatically insert hyperlinks to legal authorities cited in e-filed briefs. The resulting hyperlinked brief allows the judge reviewing it on a desktop computer or a mobile device to access quickly identified portions of the record on appeal and the cited legal authority (using the preferred engine, Lexis or Westlaw).

The court announced that its new technology includes an “iPad app that provides judges all case related information, including docket entries, pleadings, and the record on appeal. Information can be stored on the judge’s iPad to be available when there is no Wi-Fi or cell connection.” The “[a]pplication navigates from a hyperlink, to the reference material, and back to the brief.” The materials can be loaded on the iPad when the judge is assigned the case and removed from it after the case has been decided.  Electronic filing holds great promise as courts continue to take better advantage of the opportunities it provides.

However, while the legal system is in the process of developing the potential of electronic documents, problems are inherent in obtaining information solely from texts read on a screen that have been largely overlooked.  More and more, we communicate important legal and technical points to judges who will only read our written submissions on a computer screen or mobile device. If that type of consideration presents special challenges, and the literature suggests that it does, we must immediately address them.

Time magazine asked “Do E-Books Make It Harder to Remember What You Just Read?” because personal experience and research suggests that comprehension and retention differ when information is obtained from reading an electronic, rather than a paper, text.  That article reported a study that found studying data on a computer or device required more “repetition” of the data.  The study also suggested that readers of paper texts were able “to digest the material more fully.”

Abigail Sellen, from Microsoft Research Cambridge, England, suggests that “[t]he implicit feel of where you are in a physical book turns out to be more important than we realized… Only when you get an e-book do you start to miss it.” Maryanne Wolf, a developmental psychologist and cognitive scientist at Tufts University, explains that: “There is physicality in reading, maybe even more than we want to think about as we lurch into digital reading—as we move forward perhaps with too little reflection.” Research suggests that something may be lost when we read a text without holding a paper document in our hands. Is something lost when a judge reads our argument only from an electronic screen? We have been so focused on the possibilities unleashed by electronic filing that we have not yet stopped to ask this question.

Reading a legal document only from a screen is different from reading it from a paper text. That difference requires a conscious adaptation in the way we design and draft our filings and our court rules. “How exactly does the technology we use to read change the way we read?” That is an important question for lawyers and judges, as we rush headlong into a new era of electronic filing. As Marshall McLuhan famously said in 1962:  “Any technology tends to create a new human environment… Technological environments are not merely passive containers of people but are active processes that reshape people and other technologies alike.” As studies of reading on mobile devices evolve, questions of how our brains respond to screen as opposed to paper text reading will come to the fore. In addition, because individual attitudes toward different kinds of media differ, some readers and writers will be comfortable with the new media, and others less so. People who approach computers and tablets with a state of mind that is less conducive to learning than the one they bring to paper may face additional difficulties in the transition from paper to digital texts.

According to laboratory experiments, polls and consumer reports, modern computer screens fail to recreate adequately certain tactile experiences of reading on paper that may interfere with readers navigating long texts in an intuitive and satisfying way. Navigational difficulties subtly inhibit reading comprehension. This new kind of interaction with the text may also make it harder to remember what has been read after the reading is complete. Also, reading from an electronic screen may drain more of our mental resources while we are reading. Many people miss the experience of reading on paper for these and other reasons.

In addition, full comprehension for accurate decision-making may depend on making notes related to a particular text during the act of reading it. During the era of paper submissions, counsel were required to file additional paper copies of their briefs so each appellate judge would have his or her own copy to mark up with notes or underlining while they were reading. Questions have arisen concerning whether and how the shift from paper to electronic filing may impact a judge’s ability to make notes closely associated with the text of the briefs they consider.

When we think about how reading on paper is different from reading on screens, it is also important to consider how the brain interprets written language. We may think of reading as an abstract cerebral activity. However, research suggests otherwise.  In Proust and the Squid: The Story and Science of the Reading Brain, a history of the science and the development of the reading brain from antiquity to the 21st century, Maryanne Wolf explains that the brain essentially regards letters as physical objects, because it does not have another way of understanding them. As far as our brains are concerned, text is a tangible part of the physical world. Beyond treating individual letters as physical objects, the human brain also may perceive a text in its entirety as a kind of physical landscape. Soon after Wolf published Proust and the Squid, she began to receive hundreds of letters from readers. While the backgrounds of the writers varied, a theme emerged: the more reading moved online, the less students seemed to understand. Wolf’s concerns extend far beyond simple comprehension. She fears that as we turn to digital formats, we may see a negative effect on the process that she calls “deep reading.” When we read, we construct a mental representation of the text in which meaning is anchored to structure. The exact nature of such representations remains unclear, but they are likely similar to the mental maps we create of terrain.

Specifically, Wolf suggests that for certain readers, the tactile experience of “the feel of pages under one’s fingertips” provides an additional “rich source of information, subconsciously informing readers of their position in a text.” This information “provides a sort of conceptual scaffold on which information and memory is automatically arranged, and the scaffold is strongest when built from both visual and tactile cues.”

How Much Do These Differences Matter?

Paper texts generally have a more obvious and permanent topography than on-screen text. Clearly defined domains in paper text orient the reader. Tactile sensations involved in reading paper texts are not present when reading on-screen text. Wolf suggests that “reading a paper book, one can feel the paper and ink and smooth or fold a page with one’s fingers; the pages make a distinctive sound when turned; underlining or highlighting a sentence with ink permanently alters the paper’s chemistry.”

Screens may impair comprehension by, on one hand, limiting the way the reader can navigate the text, and on the other hand, making the information available, through hyperlinks and other functions, virtually limitless. Designers studying the mechanics of reading on the web noticed by the late 1990s that in “track[ing]the eye movements of screen readers, they… were more likely to skim text, [and]focus only on a few portions of the page.”

Ziming Liu is a San Jose State University professor whose research centers on digital reading and the use of e-books. His review of studies that compared print and digital reading experiences, supplemented with his own research, found that several things had changed. On screen, people tended to browse and scan, to look for keywords, and to read in a less linear, more selective fashion. On the page, they tended to concentrate more on following the text. Skimming, Liu concluded, had become the new reading: the more we read online, the more likely we were to move quickly, without stopping to ponder any one thought.” Paper texts also may be more easily navigable, because one can easily see where one is reading in the context of the document as a whole.

While we do not commonly think about or discuss these ideas, they may help explain why paper text may be more easily navigable and why paper text may make it easier for the reader to form a coherent mental map of the material being read. Perhaps turning the pages of a paper text is like leaving one footprint after another on a trail, creating a rhythm and a visible record of how far one has traveled and what remains to be traversed. Reading only on a computer screen or mobile device may interfere with intuitive navigation of a text. Without the benefit of the tactile record provided by a paper text, a reader using only a screen may find themselves tapping, scrolling or swiping forward, unsure of exactly where they are in the midst of a shifting sea of text.

The experience of reading only from a screen may inhibit the reader from mapping the journey in their minds and may make it more difficult for the reader to see individual passages in the context of the entire text. That may be more important than we think. The use of a computer mapping program to navigate a physical area has been given as an example of the limitations inherent in reading from a screen. If such a program allows users to navigate an area, street by street, and allows users to teleport to a specific address, but does not allow users to zoom out to see the entire neighborhood, they do not truly comprehend their location. The resulting experience would be similar to the experience of reading an electronic text. It is an experience rich with important information, and provides impressive capabilities to zoom in on particular information, but it may make it more difficult for the user to construct an accurate mental picture of the entire area from the limited information provided.

Studies confirm, that the more time we spend reading screens, the less time we spend reading individual units of text. When reading from a screen, skimming has become the new normal. Even those who are comfortable with e-books for leisure reading are not necessarily comfortable with e-texts for more important tasks. For example, students today are the most technology-savvy in history, so one might expect them to prefer electronic textbooks to paper. But that is not the case. As a Wired magazine article reported, “[R]esearch finds that kids these days consistently prefer their textbooks in print rather than pixels.”

Particulars of studies on the drawbacks and limitations of electronic texts will not be reviewed here. Suffice it to say that research has suggested that, because of the problems inherent in reading texts only on a computer screen, it may be prudent to change how we design and draft briefs and other filings that we know may be read only as electronic texts, to try to minimize the problems and maximize the opportunities presented by electronic filing.

How We Might Adapt

Because of the differences between paper and electronic texts, and because the results we achieve as advocates are often tied to the effectiveness of our communication, we must focus on maximizing the opportunities provided by electronic texts and minimizing any problems with it. Approaches that can improve the navigability and impact of electronic filings, and lead to improved comprehension and retention, must be adopted by lawyers and permitted by the court rules that govern them.

Robert Dubose, in Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World, suggests that when appellate advocates switch from paper briefs to electronic briefs, they should rethink legal writing. This may cause lawyers to abandon long-winded text, long paragraphs within that text and lengthy argument development in favor of briefs that look more like web pages, with highly structured text that is easy to scan and read rapidly. Dubose makes many suggestions for electronic briefs, including using:

  • outlines to show the overall structure
  • frequent headings to remind the reader of his or her place in the argument
  • well-crafted topic sentences that persuasively summarize the argument included in the paragraph
  • lists or bullet points to delineate examples or support for the argument

To take full advantage of the unique benefits of reading a brief on the screen, he suggests using bookmarks that allow the judge to jump from the table of contents to a particular argument in the brief. Converting a properly formatted brief to PDF using the Acrobat integration function allows the user to create bookmarks from the full text of marked headings. On the smaller screen of a tablet, only the first five or six words will appear on the bookmark pane, so the newly created bookmark should be shortened for easy use by the court.

Dubose also suggests that “[a]brief written to be read on an iPad should differ from one written for paper in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.” Avoiding the use of footnotes is recommended because iPad readers will not welcome scrolling down to review footnotes. A writer also then risks the footnotes not being read at all. The typeface used in constructing electronic filings also plays an important role in making the text more readable. The typeface used may matter even more in the electronic form of a document than in its paper form, because an average laser printer prints at 1200 DPI (dots per inch), and the average 15″ laptop screen has around that many pixels across its entire width. Thus, fonts may be even more difficult to read in an electronic format than they are on paper.

Existing court rules can prevent innovation, for example, by containing strict limitations on the typefaces that may be used in briefs and petitions. In 2000, The Supreme Court of Florida adopted “strict font requirements” requiring the use of either Times New Roman 14-point or Courier New 12-point for all petitions and briefs, to insure the right to inspect public records on the Internet would be available to the largest number of people and electronic documents, and out of concern that filings made available digitally would not display properly if an unusual font was used. It is time to revisit these choices and others like them.

Court rules must be revised to support, rather than prevent, the use of typefaces that make reading electronic documents easier for the judiciary. The Florida Bar Appellate Court Rules Committee and its General Subcommittee are considering a revision of the Florida Rules of Appellate Procedure with regard to briefs, now that they are being submitted electronically rather than in paper form. The committee is considering revamping the rule and adopting a modified version of the word limits contained in the Federal Rules of Appellate Procedure in lieu of the present page requirements and limits. That would allow more flexibility in the formatting changes that we are now learning can be helpful in overcoming limitations inherent in reading documents exclusively on a computer screen. That, together with a new understanding of the differences in how the brain processes information made available in the traditional paper document compared to electronic reading materials, should provide advocates with a greater ability to overcome disadvantages in comprehension and retention in connection with reading done only on a screen.

The Seventh Circuit has addressed the importance of the typeface used in a brief. They have emphasized the enormous number of pages to be reviewed and read by judges, and have recommended that brief writers enhance the reading and retention of material by “making… briefs typographically superior  It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle. That’s a valuable advantage, which you should seize.”  The Seventh Circuit has gone further, noting studies and suggesting that “long passages of serif type are easier to read and comprehend than long passages of sans-serif type” and made many additional suggestions for making briefs more readable in appellate courts.

For example, the Seventh Circuit suggests that lawyers use the most legible type face available to them. Experiment with several, and then choose the one you find easiest to read. Be aware that when every character is the same width, the eye loses valuable cues that help it distinguish one letter from another.  Monospaced type was created for typewriters to cope with mechanical limitations that do not affect type set by computers. It is no longer necessary to accept the reduction in comprehension that goes with monospaced letters, because electronically created, proportionally spaced type is available and should be used. The court also suggests using typefaces designed for books in the appellate briefs being submitted. Both the Supreme Court and the Solicitor General use Century. Professional typographers set books in New Baskerville, Book Antiqua, Calisto, Century, Century Schoolbook, Bookman Old Style, and many other proportionally spaced serif faces. Any face with the word “book” in its name is likely to be good for legal work.

The Seventh Circuit has made other helpful suggestions. It has suggested that lawyers use italics, not underlining, for case names and emphasis. Case names are not underlined in the United States Reports, the Solicitor General’s briefs, or law reviews, for good reason. Underlining masks the descenders (the bottom parts of g, j, p, q, and y). This interferes with reading, because we recognize characters by shape. An underscore makes characters look more alike, which not only slows reading but also impairs comprehension.

LPT App

The court suggests that lawyers indent the first line of each paragraph one-quarter inch or less. Big indents disrupt the flow of text. The half-inch indent comes from the tab key on a typewriter and is never used in professionally set type, where the normal indent is the width of the letter “m.” It also suggests that lawyers cut down on long footnotes and long block quotes.

Court rule changes will be necessary nationwide to allow legal briefs to be designed, drafted and formatted in ways that are better suited to reading long passages of electronic text on mobile devices. “[C]urrent court rules may limit iPad-appropriate style and… ‘the advent of iPad reading [could]be the impetus for courts to set aside their existing document-layout rules, most of which are held over from the typewriter era.’” “Eugene Volokh, author of Academic Legal Writing, notes that ‘double spacing lines would be especially bad on iPads, because it would halve the number of lines that can be seen at once on the (already fairly small) screen.’” Even long-established requirements, like double-spaced text and one-inch margins, may disappear during such revisions. The reality is that layout and typeface limitations in the rules were created with typewriters and paper filings in mind. They are in desperate need of rethinking and updating to enable us to take advantage of the new opportunities presented by electronic filing.

Other changes to improve the readability of our electronic submissions should be adopted. Since difficulty navigating electronic texts may inhibit comprehension and retention, we should make our electronic filings more navigable with  better structure and pagination. Perhaps it would help to use page numbers that included not only the page number, but some larger context. For example, the inclusion of the page and the number of pages together (“4 of 21” rather than “4”) might better orient the reader. Better structure also could be of assistance. Shorter, more frequent and more clearly worded headings and sub-headings may prove valuable. The numbering of headings also could be changed to provide better information about where the reader is in the document, such as the use of orienting detail in a heading number, for example “I.A.1.” rather than merely “1.”

The importance of old-fashioned rules of good writing cannot be overlooked. Difficulties in comprehension or retention are aggravated by poor topic sentences, poor paragraph structure, and arguments that ramble and digress. The use of indented, single-spaced, bulleted lists might help clarify the important points in an argument, because the white space around them may draw the eye to the list on the electronic page, and the list may more succinctly present key points. That is another change that would benefit from the adoption of a word limit, rather than a page limit, for briefs.

Finally, further innovation within the digital format itself may mitigate some of the concerns that electronic filings now present. The path followed by other innovations in other areas suggests that is possible. For example, the move from vinyl to tape for recorded sound was hailed as a big innovation, but because tape is in some ways a flawed medium, prone to its own forms of distortion and lack of fidelity, tape did not fully replace vinyl records. It took the invention of the digital compact disc to solve those problems and deliver that mortal blow. Perhaps an easier-to-read version of digital text (a proverbial digital text 2.0) will appear.

Conclusion

The judiciary and the organized bar must work together to address the opportunities and challenges presented by electronic filing discussed here. Together, we can facilitate the individual lawyer’s adaptation to these important changes, and make necessary updates to existing court rules. In addition to rule changes, true progress will require fuller illumination of the details of how members of the judiciary are using and are planning to use electronic texts, and, eventually, the development of suggested best practices for the design and drafting of electronic filings by attorneys in the trial and appellate courts. Although awareness of these issues among members of the bar is just developing, a strong cooperative effort will allow us soon to better achieve the promise of electronic filing.

About the Authors

Maher Romes
Stephen T. Maher is a partner at Shutts & Bowen LLP in Miami, Florida, and a frequent author on lawyers and lawyering. Ana Romes is an associate at Shutts & Bowen, where she a member of the firm’s class action and mass litigation practice.

Feature image credit: Ekaterina_Minaeva / Shutterstock.com

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