by Lee Marshall, Bryan Cave partner and Damien Riehl, senior product strategist at Thomson Reuters
Even lawyers don’t generate as much paper as they used to.
That doesn’t mean our tendency to use too many words has diminished. It simply means that nearly everything we write and read is now done electronically. From e‑mail to advocacy, we write in an electronic age, and many of our words are never reduced to paper. The Clerk of one federal court of appeals estimates, for example, that 70% of that court’s judges read briefs on screens, not paper. And screen reading can be very different than paper reading, triggering disparate cognitive processes. Put simply: paper readers and screen readers read differently. As such, writers who empathize with their readers should consider adapting.
Research on screens vs. paper
While there is some debate about the nature of the differences and the reasons for them, many studies have concluded that reading on screens takes longer and can have a negative effect on comprehension. Experts point to several potential reasons:
Internet-surfing screen readers may have simply formed poor habits. To cope with e-avalanches, readers often scan only as much of e-mail and webpages as required to discern writers’ intent. So screen readers are less likely to read every word in detail. This paper-based diligence — contrasted with screen-based skimming — may explain why many people prefer to proofread final drafts on paper. The printed page often helps ensure that errant typos, which are easily missed on screen, will magically materialize on paper. This is not your imagination; it has been confirmed by research.
Other habits that readers form while scanning Internet pages for information may affect the way their eyes read longer text on screen. Beyond cognitive perceptions, eye-tracking studies show that screen readers’ eyes physically move differently when reading on screens than on paper. Screen readers’ eyes tend to track in an “F” pattern: reading the first line in full, the second line less fully, and then further diminishing down the page.
Screen readers are also more likely to scan — relying upon authors to assist comprehension by providing visual variety and structure. Frequently, those sought-after visual landmarks include headings, summaries, images, and typographic emphasis (e.g., bold, italics, color). Readers’ eyes are drawn to elements that provide variety, such as images and summary headings.
Judges use the Internet, too.
Despite these differences, coupled with the growing amount of legal writing consumed exclusively on screen, many lawyers still write their briefs exactly the same way they did when drafting for paper. One reason may be that the legal profession is mired in precedent: both legal and logistical. Their common rationale: “My briefs have been successful for many years; why change?” But legal arguments that appear clear on paper may diminish — or perhaps be lost completely — for those judges who now read on screens. Because Judges are Internet users, too, they are susceptible to the same screen-reading foibles that affect the rest of us.
Drafting for screen readers.
Legal writers may want to consider expanding their typographic toolboxes so arguments are more-easily absorbed — both on paper and electronically. When writing for electronic media, lawyers who follow the sage advice to “know your audience” should also “know your audience’s media device.” Advocates should consider adapting their writing styles to adopt conventions that have proven effective in other electronic media (e.g., webpages, e-books, and apps) that are displayed on monitors, tablets, and smartphones.
So, how should we write briefs for the electronic age? Consider these tips, which aid comprehension on both paper and screens:
Legal documents are electronic documents — mostly.
Because legal writers usually don’t know their readers’ visual medium of choice — paper? 19” monitor? tablet? smartphone? — they confront dilemmas similar to those faced by Web designers. Variable-sized screens usually require screen writers to make some compromises — like using fonts and typefaces that display well on all media, that are more broadly installed, and that still follow court rules (e.g., serifs) that were designed for paper.
On the other hand, lawyers have a benefit that Web designers don’t: PDF. Web designers must write with HTML, knowing that text wraps much differently on a 17” monitor than on a 4” smartphone. But court e-filing rules usually require lawyers to use the more-static PDF, which provides some paper-like similarity and uniformity (e.g., embedded fonts, knowing exactly where pages break, consistent margins, hyphenation). But PDFs also introduce other problems for smaller screens (e.g., more scrolling and zooming, inconvenient page breaks).
A big problem for screen readers is footnotes. Some lawyers and judges find them merely annoying on paper, but they’re nearly impossible to navigate on a smaller iPad screen. To jump from body text to footnotes (and back), tablet users must continuously pinch, scroll, and re-orient pages. As such, lawyers who often use footnotes — either to relegate their parenthetical arguments or to de-emphasize legal citations — may want to re-assess that position. On tablets, footnotes get lost.
This isn’t your grandfather’s brief.
Technological progress in many legal areas marches on. While twenty years ago, many lawyers could not imagine that a brief’s arguments could be both drafted and consumed without ever touching paper, that day has arrived. As such, prudent lawyers will continue to know their screen-reading audience. When judges read electronically — more frequent today than ever — they will thank you.
Lee Marshall is a partner with Bryan Cave LLP and leader of the firm’s Commercial Litigation Group. He focuses his practice on commercial, intellectual property and appellate litigation and has represented clients in the United States Supreme Court, and numerous appellate and district courts across the country.
Damien Riehl is a senior product strategist at Thomson Reuters. A technology lawyer, he has practiced in complex business litigation, intellectual property, and appeals throughout the United States. He writes and speaks frequently on technology issues, and in his current position, he monitors and shapes how technology affects the law and its practice.
The authors are grateful for the contributions of Eric Magnuson — Appellate Department head at Robins Kaplan — who has provided valuable input on this topic.