I just read a very interesting article, Daniel Sockwell, Writing a Brief for the iPad Judge. The basic problem:
[M]ore and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask — the clerks will likely be happy to help.
Why you should care how the judge reads your brief?
Why do iPads even matter? … Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print….
I think he may have meant tablet, rather than the Apple-specific brand of tablet, which is only noted for its irony. It makes sense that judges would use tablets to read briefs, saving them from having to carry the weight of dead-tree briefs with them. The alternative is carrying the one page write-up of their law clerks, which isn’t a really good thing.
As discussed, this raises a wealth of issues that fundamentally alter how briefs should be presented in order to have their maximum beneficial impact.
A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.
Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.
And then, fonts. Easy to read. Easy on the eyes. With adequate resolution, yet dignified. Comic sans is not as funny in a brief as it is elsewhere.
There is one problem arising from the mixed brief submission, where a court requires paper briefs as well as digital briefs. The two can’t be different, and yet the two will be read in very different ways that require them to be different. Sockwell makes the point that an advocate needs to know how a particular judge reads a brief, and tailor a brief to her ways. That may be fine when the brief goes to a trial judge, but won’t necessarily help when it goes to an appellate panel. You can’t please them all.
But this is likely to continue as a trend, and eventually reach the point where all briefs are read digitally. It’s just so much easier logistically. That said, ease comes with a price, and that also has to be factored into the brief.
Initially, Sockwell’s point about eliminating footnotes is a critical one, not just because they’re hard to read on a tablet but because that means footnotes won’t be there to be used. I love footnotes in briefs. They are the perfect tool to make mini-arguments, small off-shoots of main points that may not merit a point heading of their own but carry weight in the consideration of the main point. I’ve prevailed in more than a few cases because of the content of a footnote. To lose them because a judge prefers to read on a tablet is to lose a critical arrow in our quiver.
And what about margin notes? What about a dog-eared page? These are the tools of reading, of thinking as one reads, that are the embodiment of persuasiveness. These are the means by which the reader finds himself seeing things that may ultimately convince him to agree with your position. But as he reads through it, he can’t know yet whether he’s persuaded, and needs to highlight a point, add some thoughts or questions of his own, so he can refer back to them as he mulls over the decision.
The tablet doesn’t lend itself to these physical manifestations of deliberation. Yes, there are apps, sticky notes, highlighting, etc., but if you think that’s the same, or easily adopted by a judge who still appreciates the smell of a book or the feel of a linen page, you’re deluding yourself. As the judge reads your brief, that’s not the time to pray he’s sufficiently technologically adept to intuitively run apps to note his thoughts. It’s the time to just think, to just note those thoughts without distraction. Nothing ruins a good ponder like a cool app.
Over time, as digital natives grow robes and take to the bench, these issues will dissipate somewhat. They will be better at shifting gears between thought and technology, and will run and use apps without need for the amount of thought us Luddites require.
But even then, they will lose the facility that comes from having it all there in front of them. Having a brief opened to a page so that you can shift back and forth between the brief you’re reading and the other guy’s, makes it enormously easier to contrast arguments. As much as I open myself for ridicule for saying this, I greatly prefer my caselaw in books, where I can keep a dozen open on my desk and refer back and forth to the language and holdings of each.
On the other hand, I can easily copy and paste a quote from an online opinion rather than have to type it out at length from a book, and be certain that it will be perfect every time. Yes, the tablet will make things easier, less weighty, and assure that there will be no scrivener’s errors. All we need to sacrifice is thought.