It’s Not Just A Formatting Thing

At Volokh Conspiracy, shortly before Eugene went rogue and joined the Washington Post, he wrote about a new trend, judges reading briefs on their iPads.

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.

18 comments on “It’s Not Just A Formatting Thing

  1. Jordan Rushie

    On that same point, my old boss used to stress dictation. One day I laughed at him for being old and behind the times. Then he explained to me that the reason he dictates briefs is because it makes him a better oral advocate. It taught him how to speak in short, concise sentences that not only made sense to him, but to his secretary.

    Oh, and I gave up my iPad, although I use a Kindle for light reading on the train. Legal briefs? I need to print them, highlight them, and mark them up. You’re right – something just gets lost in digital format.

  2. the_scrivener

    There’s probably a happy medium between paper and screen, at least on formatting. The Seventh Circuit’s website has lengthy, but optional, style guides and a nice 14-point Bookman font is a joy to read on paper as well as onscreen.

    That said, unless courts make mandatory the (now optional) hyper-linking of cites and notes in electronic briefs–something probably beyond the technological capability of a lot of lawyers–then paper will remain the best format.

    1. SHG Post author

      Not to be unduly disagreeable, but I think you are wrong on every front. First, there is no “happy medium,” nor can there be. They are in conflict, which is the point of Sockwell’s, Eugene’s and my post. Second, there is no “paper will remain the best format” if the judge is reading on a tablet. That’s the point that gives rise to the conflict. It’s not up to the lawyer to decide how the judge will read his brief. He doesn’t get a vote. And font style and size is only one of many isues, and likely the least important of all.

      1. the_scrivener

        It’s an honor to be disagreed with on SJ, unduly or not, by the man himself. I was mostly talking about the most unimportant part (style that looks good on both paper and screen) with regard to the happy medium comment.

        The fully hyperlinked e-brief solves some problems you identify for the e-reader judge (you can click the footnote number, and the note just pops up right there on the screen, without scrolling, and a second tap dismisses the note), which causes no harm to the presentation for her colleague who reads on paper. Possibly great harm to the lawyer and client who has to pay for it, but then what else is new?

        1. SHG Post author

          An honor? You would do better to win come in third in a footrace.

          The hyperlinked e-brief raises another plethora of issues. How does the judge read the linked case and refer back and forth to the substance of the brief? It can be done, but it’s disruptive, time-consuming and annoying. It breaks up thought. It harms the presentation because of this.

          Briefs aren’t about looking good, but persuading. Lawyers aren’t trying to win beauty pageants, but their client’s cases. I agree that it’s better to look good than not, but it cannot come at the expense of substance.

      2. Jim Tyre

        In the abstract, font size and style may be the least important. But, as you know, many courts have very specific requirements for such things in their rules. One ignores those rules at one’s peril, even if using a different font size or style would make the brief easier to read on a tablet.

  3. rafiv

    I try to be as paperless as possible and try to digitize all documents, pleadings etc. I tell myself that I try to avoid printing if at all possible. But I am a Luddite at heart. As efficient as Westlaw is and no matter how hard I try to brief and highlight digitally, I prefer paper. If I want to master the subtleties of a topic, I need the physicality of the printed word. If I am editing a brief, I need my trusty red pen and a ream of paper to fix my near infinite stream of formatting, logical and grammatical errors.

    Perhaps one way to address the footnotes – a mechanism I too feel is critical for proper advocacy – is to hyperlink them within the text. But as I practice in some courts where even my tablet is verboten, I cannot speak to the amenability of judge’s to this technique.

  4. Turk

    I’ve prevailed in more than a few cases because of the content of a footnote.

    But you also would have won in those footnotes were in the main text, no?

    I stopped using footnotes a few years ago, except for the case citation. For some of us, that one particular issue is no issue at all…paper and digital are the same.

    1. SHG Post author

      But you also would have won in those footnotes were in the main text, no?

      No. They would not have appeared at all in the absence of footnotes. Tactically, it’s often necessary to pare down the number of arguments, so we can sneak in some extras tangentially to bolster main argument in the footnote that wouldn’t make any sense in the main point.

      And there are many people who don’t find the absence of footnotes to be a problem given the way they write a brief. There is a name for them, but it’s not flattering.

  5. stavro375

    You young ‘uns with your fancy “eye-pads” and “smart phones”, back in mah day they didn’t even have paper! We had to write briefs on tree bark, using bits of charcoal instead of pencils! And god help you if it rained the day you brought everything to the courthouse, if your carriage wasn’t waterproofed enough… Yessiree, I won many a case that way.

  6. UltravioletAdmin

    Well we could encourage the adoption of a standard format or style. A PDF rip read on a tablet will keep the footnotes and style while a .doc won’t. Several other agencies and departments require PDF’s anyway. Making the digital submissions PDFs should keep the formatting and style along with footnotes. It just won’t let a judge as easily increase the text size and re-format the text as an e-read program.

    1. SHG Post author

      Meh. Not sure how that fixes much of anything (and who would ever send a word doc rather than a pdf?). Not sure how “we” can encourage the multitude of courts to craft a standard format considering they’ve never done so before.

  7. David Shulman

    Florida has had mandatory e-filing of all civil court documents for a while now. It was initially a huge cluster-f but it seems to be getting better. I don’t know how many judges print out filed documents. I’m thinking fewer and fewer.

  8. Rick Horowitz

    Spot on.

    No one would call me anti-tech, or even tech-challenged. I use my laptop in court to take notes, unless I’m in a court where I have to conduct the hearing while standing. I have my calendar networked between my iPhone, iPad, MacBook Air, my office manager’s computer, and the server; update on any one of them, all are updated in seconds. I’ve conducted trials using an “electronic binder” to do my questioning, and to be able to search discovery on-the-fly.

    But when I’m writing a brief, or a response to a brief, my office is a cyclone of paper. Yeah, I use an online service to research. I even keep multiple tabs open to switch back and forth for things I haven’t (yet) printed. And I cut-and-paste passages when necessary, rather than re-typing them.

    To think requires interacting with the writing. And the only way I know to do that is to use pens and highlighters while I read. As you point out, that’s not so easy when using a screen, even with apps and tech to allow it.

    It’s hard enough to fight the uphill battle of the defense. I really dread the day that things go all digital and e-filing comes to the venues in which I practice. (Federal court here does it, and I hate ECF enough that it’s one reason I prefer to stay in the state courts.)

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