Preparing an Appealing Brief in the Digital Age

At some point, you’ve probably contemplated the many ways in which digital devices have changed our everyday lives. Gone are the days of raising your hand to hail a cab, looking up a phone number in an oversized book, or simply staring around in boredom as you wait in line. And you may have noticed that the quintessentially low-tech activity of curling up with a good book is now done with a tablet.

But have you considered how the digital age and the emergence of e-readers have changed your law practice? Specifically, how does technology change the way in which your audience (especially judges and law clerks) views your writing? This column offers some considerations and advice.

Know your digital audience

This is probably not the first time you’ve been advised to “know your audience.” But it’s not enough to know your audience in the sense of whom you are trying to convince; you need to understand how your audience reads the materials you present to them, especially as we progress further into the digital age.

Judges aren’t disdainful of computers anymore. While there are still those who say “I can’t read on a screen,” with the dramatic improvements in display technology (huge monitors, multiple monitors, great resolution), nearly all judges now read most, if not all, of the information they get in the course of a day online, just like lawyers. Judges are becoming increasingly tech savvy as they realize that they can carry a small tablet home from the office or to the bench rather than unwieldy piles of briefs and memos.

As a result, courts are embracing this technology more than ever before. And as courts embrace technology, practitioners have no choice but to keep up. (See Eric J. Magnuson & Luke A. Hasskamp, “E-filing may be easy, but it’s not that easy.” Minn. Lawyer, April 17, 2017.)

Moreover, even if judges are slow to adopt technological innovations, it’s important to keep in mind that they’re not the only ones in chambers reviewing your materials. Judicial law clerks are important members of most judges’ staffs. Judges rely on law clerks to cull through parties’ submissions, conduct legal research, and draft orders and opinions. And law clerks who went straight through law school from college may be as young as 25 years old. This means they likely grew up reading on screens, including e-readers. (For 25-year-olds, the iPad first hit the market when they were in high school.) This reality will only become starker with each subsequent graduating class.

We are not the only ones to ponder this evolution. The ABA Council of Appellate Lawyers recently published an in-depth study of the issues of briefing in an electronic age, and how courts have and may in the future modify their procedures to take maximum advantage of technology. (View online “The Leap from E-Filing to E-Briefing: Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs.”)

With all this in mind, we offer some specific tips as you consider writing for judges (and courthouse staff) in the digital age.

Screen aesthetics

On the topic of readability, our focus is not simply on writing clearly and concisely. Instead, we’re also interested in screen aesthetics, i.e., how your written briefs display on a digital screen, including e-readers.

We’re reminded of an article from the satirical newspaper The Onion titled, “Nation Shudders at Large Block of Uninterrupted Text.” The article joked about readers being “bombarded with an overwhelming mass of black text” with “no bullet points, no highlighted parts” leading to “a 450 percent rise in temple rubbing and under-the-breath cursing around this time.” The resulting confusion required speculation “that the never-ending flood of sentences may be a news article, medical study, urgent product recall notice, letter, user agreement, or even a binding contract of some kind.”

As is often the case, The Onion’s satire is rooted in a universal truth. It is not enough to simply write a persuasive text; instead, the writer must also present those arguments in a manner that maximizes reader comprehension. Blocks of text can seem daunting — and those blocks may appear even more daunting on smaller e-readers than on computer monitors capable of larger displays.

With this in mind, here are some simple tips to consider when considering the aesthetics of your brief, especially for the screen:

Avoid long sentences: Like the daunting block of text in The Onion article, some sentences on their own can be challenging to traverse. Aim for having no sentences with more 40 words. Sentences should average 25 words, give or take.
Avoid overly long paragraphs: Aim for no more than six sentences in any paragraph. When proofreading, try to ensure a paragraph break always appears on the screen.
Utilize headings to provide signposts for readers.
Lists/bullet points: Easy-to-digest summaries of key points. Break up blocks of text.
Italicize instead of underline: Italicization provides necessary emphasis. Underlining impairs legibility by obscuring letters and punctuation.

For a more comprehensive discussion of writing for the screen, we recommend you review some of the articles and comments found in Chapter 22, “The Appealing Page,” Marshall Houts and Walter Rogosheske, “Art of Advocacy: Appeals,” Eric J. Magnuson and Diane B. Bratvold (eds.) (LexisNexis).

Utility

An important goal in legal writing is the utility of the submission, i.e., making your brief useful to the reader. And we’re not talking simply about a clear, concise, and well-written brief that displays nicely on an e-reader. We also mean using simple techniques to help readers navigate your submissions.

Utility includes both internal and external navigation of the document. For internal navigation, use bookmarks and internal hyperlinks to make it easy for the reader to jump back and forth throughout your document to relevant sections. For external navigation, provide hyperlinks to as many sources cited throughout your document as possible.

Not only does this include links to external URLs, but also legal citations, cites to the record, even opposing party’s brief. The goal is to make it easy on the judge to understand what you’ve written and to find the materials to which you’ve cited. If it’s a source that is important enough for you to include in your filing, then it is important enough to spend the time necessary to ensure that it’s easy for the judge to find.

Conclusion

Digital devices have already changed the practice of law dramatically. A wise lawyer adapts to these changes rather than assuming his or her daily life is unaffected. And an even wiser lawyer realizes that he or she is not alone — courts and judges are adapting too. Get on the bus or be left behind.