The good news: Courts are increasingly taking on the possibilities of digital files. The bad? There’s still some disconnect between how people read digital files.
The swelling shift from paper to digital is on display almost everywhere you look—and the courts are no exception. As the Columbia Business Law Review noted back in early 2014, more and more judges are taking advantage of the versatility of digital briefs. But with that comes a bit of worry about how the information is presented; footnotes are no longer the favored method of citing information, some fonts may be harder to read on a digital screen than they are on paper, judges can now carry thousands of briefs untethered from a single work location.
And as the ABA’s Law Practice Tips team wrote in an article on Medium, those aren’t the only translations that need to be taken into account:
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.
It’s not that the jump is unwelcome, but it does present a challenge. Studies are showing more and more issues that—while not insurmountable—make for extra thinking on the lawyer’s part. Will this brief be comprehended (and appreciated) in both print and digital, without being fundamentally different? How can an attorney file a brief ensure that the judge is able to take everything away?
Sure, over time more and more “digital natives” will take the bench, and electronic briefs will become less of a technicality and more of a standard. The Fifth Circuit, amongst others, is leading the way. But in the meantime, there’s a conscious shift that needs to occur—that is, unless you have the experience.
For law bloggers, the shift is actually a lot closer to than it might be for others. The article cites Robert Dubose’s guidance on the subject, and it’s pretty close to blogging best practices:
- Effective formatting: Break up your content; don’t be afraid to use subheads and bullet points to present your information in a palatable away to the judge. Though we hope that judges are reading briefs thoroughly (or some facsimile) the proof is in the studied pudding that people read differently online (closer to a scan) than they do in print. Make sure your brief (or blog) helps them out a bit.
- Write effectively: Simplicity and clarity are the hallmarks of proper readability for good reason. “It’s just as important as in briefs—you see a lot where lawyers are just spouting rhetoric, and making points as if whoever’s reading it has some sort of obligation to read it,” said Barry Barnett, author of The Contingency blog in an LXBN Leaders interview. “In many ways they sort of do, but if you don’t interest them and reward them they’re not going to read with comprehension and enthusiasm. You want all your readers to be happy to have read what you wrote.”
- Take advantage of the medium: Sure, footnotes are no longer an effective option if it requires judges reading digitally to scroll down on their tablet constantly to review the citations. But linking out is not just effective blogging; hyperlinks are the footnotes of the future. Within electronic briefs they can help judges jump quickly between table of contents, bookmarks, and appendices. And when that link is digital instead of purely footnoted, the author can control how the PDF appears when the judge opens it.
Opportunities and challenges abound in the realm of electronic briefs. But if you know how to effectively wield your writing skills on a blog, odds are the digital revolution will be naturalized.