Modern Brief Readability (tl;dr)

Introduction

As an enthusiastic consumer of advice on effective and persuasive legal writing, I have read all the tomes from all the experts. I know how to organize my briefs logically, compose compelling paragraphs, choose power words, avoid hyperbole, and edit mercilessly. Unsurprisingly, most of this advice has focused on content, i.e., how best to persuade an appellate judge to your way of thinking using the classical rhetorical tools of ethos, pathos, and logos.

Over the years, however, I have also investigated principles of visual rhetoric, which encapsulates the art of effective communication through visual elements (such as typography, images, and product presentation). This research taught me to craft my briefs using pithy headings, left line justification, varying fonts/font size, and graphs. These elements are all geared toward creating a product that is, quite literally, “easy on the eyes.” Because in the end, if your brief is not welcoming to the reader, the content might never be read at all.

Now we face a new challenge: E-readers (as in both the screens themselves and the individuals who read on them). While it is safe to say that many appellate judges (likely, still the majority) read paper copies of briefs, that is not true for their law clerks, nor will it be the case for much longer. We must employ different tools and strategies to reach a different consumer; we must adapt.

Two questions came to mind as I deliberated on the proliferation of electronic submissions: (1) how do I make my product look good and function well on a screen? and (2) how do I combat the problems inherent in reading electronically? Here are my early thoughts on this new challenge and how we might combat it.

Our New Reality

No one can deny the popularity of E-readers in the American pleasure-reading marketplace. In the decade between 2009 and 2019, the percentage of adults who own an E-reader climbed steadily from 2% to 52%.  A statistical analysis performed in 2018 revealed approximately 35% of 18-29-year-olds used such devices to read books.  In a study performed in 2016, 80% of K-12 school administrators responding reported that their schools used digital content.

There is no basis to believe that judges and clerks will continue to read our briefs on paper, and many have already stopped. We have seen the proliferation of E-filing requirements in our courts and, in general, it is a good thing. The efficiencies occasioned by the advances in technology, including ready access to information and its easy portability, are staggering. Take it from someone who developed defined arm muscles by lugging around heavy briefs and appendices for decades.

Unfortunately, it’s not all sunshine and waffles. While judges and law clerks might appreciate being freed from carting about reams of papers, research indicates that they are likely to: (1) comprehend less of what they read on a screen; and (2) disproportionately believe that they have understood more than they actually do.  This is a double whammy for appellate lawyers who rely on a focused, critically-thinking reader.

So, what to do about the E-reader who, gasp! might be tempted to open your brief and just scrollllllll through it? Yes, there have always been skimmers, but experts theorize that the temptation to do so is much higher on an electronic platform where the reader is accustomed to “surfing” through content in their leisure time. Is there a way we can effectively communicate with this multitasker who gives us less than 100% attention? I think so and offer the following tips to perk up your brief on an E-reader, but not lessen the decorum we expect from an appellate submission.

Adapting Appellate Brief Writing to our New Reality

Admittedly, none of the following tips are novel; these are all elements that can be incorporated into any piece of persuasive writing and you can find deeper analyses of these tools in the expert tomes. My idea was to present the tools best suited to preparation of an easy-to-read-on-a-screen final product. To my mind, the key is to make the brief grab the reader’s attention and, ideally, draw them in so they stop skimming. But even if they don’t, you can deliver enough digestible chunks of information to make your point.

• Airtight Structure for Argument: this is listed first because it is instrumental in any appellate brief, and especially necessary when you might have a reader with a limited attention span. A tight organization which logically presents your main arguments, supported by sub-arguments, is not only compelling because it draws the reader along, but it allows you to do two other important things:
  • Create Pithy but Informative Headings: use your headings to convey information but keep it as short as you can. Don’t say “The District Court Erred” when you can say “This Court’s Holding in Smith v. Jones Compels Reversal.” The next heading might elaborate: “Smith v. Jones Established a Four-Prong Test Under the Babbadook Act.” Do not go more than four pages of argument without a heading and draw attention to them with bolding or a larger font size (if the rules allow). But do not use all caps. Ever.
  • Create an Informative and Argumentative Table of Contents: Many judges report that they pay special attention to the table of contents and will often begin reading somewhere mid-brief (shocking, I know!). The added benefit of pithy headings is that, when assembled properly, they present a treetop version of why you think you should win. Do not waste this opportunity. If, when assembled into the final table, the overall presentation does not compel you to action, then rewrite your headings.
• Write Your Summary/Introduction as if It Might Be the Only Thing Anyone Reads: because, duh. Seriously, to the extent the rules allow, flavor your introduction to grab your reader’s attention. “This case arises from an inexcusable miscarriage of justice by the federal government; one the District Court was powerless to cure. But this Court can.” Do not just recount what your argument points are; your effective table of contents will do that. Here, tell a story…make your reader want to learn more.
• Make Your Paragraph Structure Work For You: There are three easy ways you can make your paragraph structure E-reader friendly: (1) keep paragraphs relatively short; (2) use transition words to open a new paragraph; (3) even better, use an introductory “lead-in” paragraph followed by explanation of each point in paragraphs successively marked “First,” “Second,” “Third, and finally,…” Lead your reader by the nose; explain first where you are going and then use the next few paragraphs to take them there. Denouements are for mystery novels, not appellate briefs.
• Where Possible, Use Graphics: Again, when rules allow, consider using an image, chart, graph, numbered list, bullet points, etc. Rather than describing the parties in the statement of facts, create a 2-3 column chart listing the cast of characters with whatever categorizing information is relevant.

One important proviso: graphical representation of information is not an effective tool for persuasion. Employ this only when you wish to merely convey information, not when you need to convince the reader of a necessary proposition.

• Consider Creative Repetition: I am probably not the only one who was taught to avoid using the same words/phrases when writing (hello, Roget’s!). Therefore, the literary device of repetition is not one that came naturally to me. Yet, I have learned that there is great power in planting a seed – using a specific term or concept – early in a brief (ideally in the introduction as well as the headings) and continually emphasizing it as the arguments progress, ending, of course, with it prominently featured in the brief’s conclusion. For example, in a recent brief involving a will contest, the word “capacity” figured prominently; in an ERISA appeal, my go-to phrase was “arbitrary and capricious.” Forcing an E-reader to see the same phrase regularly pop up as they skim will hopefully increase their comprehension of your important point.
  

Conclusion

This is my first foray into exploring techniques to adapt my briefs for different kind of E-readers and I will continue to research and experiment with effective techniques. I hope I have given you some inspiration to do the same.