There is a Quiet Revolution in Appellate Brief Writing

There is a Quiet Revolution Occurring in Appellate Brief Writing, Steve MaherAs lawyers who write appellate briefs in the 21st century, we must pay attention to how our briefs will be read by the judges who are deciding the case.

Fewer judges read our briefs on paper, reading them instead on a computer screen or tablet device. Electronic filing has made it more difficult to continue the old habit of reading from paper. Judges who like to read briefs on paper must generally print them from our electronic filings. Increasingly, our effectiveness as lawyers depends on how wisely and how well we understand and take advantage of the revolutionary changes that are now occurring.

Time to Discuss Transition from Paper to Digital is Now

The transition from paper filing to electronic filing of court documents has raised serious questions about how paper texts differ from digital texts. Many people think that difficulties they experience in reading and retaining text from a screen, as opposed to their experiences when they read from a paper text, are somehow personal to them, their preferences or their habits. In fact, the issues that raised by reading important legal materials only from a screen are universal and significant. In subtle ways that have largely escaped broader discussion, there are real issues with reading from a screen that cannot be satisfactorily explained by a suggestion that the reader is from the wrong generation or is simply inexperienced with the format.

These issues can be viewed as second generation electronic filing issues common to all courts that require submissions filed by electronic means. These issues are particularly timely in Florida because the state courts are just completing the transition from paper to electronic filing of court documents in the trial and appellate courts, and the Eleventh Circuit Court of Appeals still requires paper filing of briefs and appendices along with the electronic filing of those documents.  Therefore, this is a logical time to focus on the more subtle consequences of the shift to electronic filing.

Differences in Digital and Paper

Personal experience and recent research suggest that there may be differences in comprehension and retention when information is obtained from reading an electronic, rather than a paper, text.  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 of 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? Reading a legal document 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 the technology we use changes the way we read 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 digital texts and technologies become more pervasive, are we still reading as attentively and as thoroughly as we did when we read from paper texts?

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 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 that closely associated with the text of the briefs.

Top Priority in Digital is Improving Comprehension and Retention

Because there are real differences between paper and electronic texts, and because, as advocates, the results we achieve are often tied to the effectiveness of our communication, we must focus on ways that we can maximize the opportunities provided by this new type of interaction with text, and minimize any problems with it. Approaches that can improve the navigability and impact of electronic filings, and lead to improved comprehension and retention from them, must be a top priority.

How to Approach Briefing in The ‘Post-Revolutionary’ Environment

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

We expand and develop more ideas and suggestions for improving brief writing in this new environment in our recent article in the American Bar Association’s Law Practice Today electronic publication.

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