The tools and techniques for efficiently and effectively creating reader-friendly electronic briefs have been available for years, but often lawyers do not take full advantage. Artificial Intelligence, of course, is a game changer, but there are a number other useful tools and techniques that attorneys fail to use on a regular basis, many of which have been available for decades now. A four member panel, moderated by Brian Miller of Texas law firm Royston, Rayzor, Vickery & Williams, explained to attendees at the 2024 Appellate Judges Education Institute what technology practitioners and courts should be using on a regular basis. The panelists were: Justice Peter W. Sacks of the Massachusetts Appeals Court; Raffi Melkonian of law firm Wright, Close & Barger LLP; Jennifer Shircliff, Staff Attorney at the Indiana Supreme Court; and Brian Knudsen of Thomson Reuters, Vice-President of Large Law Firms.
“It’s important to think about where we have been,” said Melkonian. “Our generation will straddle both sides of a major technological change in briefing.” We are going from hard copy records to linking briefs to an electronic online record. We have to use the available tools in the most beneficial manner.
The other panelists echoed Melkonian’s sentiments. Justice[ML1] Sacks says that when he arrived on the Massachusetts Appeals Court, the court was more advanced than the attorney general’s office. He would carry hard copy briefs to read on the subway going to work. Now the briefs are all on his iPad. He has access to everything from every case he’s handled in the last six to seven years. He can cite check on the iPad too.
Shircliff said the proper use of the technology is critical to keeping the record in order and for efficient administration of justice. Knudsen adds that generative AI has been rapidly adopted, unlike other technologies. But if used incorrectly, it can really hurt you.
What have we learned about reading on screens?
Miller points out that Robert Dubose, who authored a short paper, “Legal Writing for the Rewired Brain,” emphasized that studies of screen-reading eye movement have observed an F-shaped heat map pattern on screens. Dubose gave talks about how this affects our briefing. Things at the top are noticed, things on the left margin are noticed more, and things in the middle that have emphasis, tend to get noticed. This realization drove Miller to consciously place emphasis on the starts of sections, the starts of pages, and the starts of middle paragraphs. Don’t bury important points by putting them elsewhere. Don’t assume the entire brief will be read. Account for skimmers who only read first lines or sentences. Tables and headings are more important than ever. If the header is not informative and persuasive, it will take away from the accompanying text.
Melkonian observes that screen readers find it hard to read substantive footnotes. They read side to side to digest the text, but footnotes force them to scroll down in the midst of that to catch what is being said there. Because of this, he has dramatically decreased his use of footnotes in briefing. Shircliff agrees that she does not see footnotes used much and tries to use them sparingly herself. When she does, it is for inconsequential information.
Judge Sacks disagrees somewhat, as he likes footnotes. They are important to his writing. He likes to anticipate questions and put the answers in the footnote. He typically has a little over one footnote a page in his opinions, though he is trying to reduce his usage to one every other page. He notes that he reads all briefs on iPad in portrait format. And he reads all the footnotes. He dislikes footnotes in a smaller font, however, because they are harder to read. Some judges, however, may skip the footnotes. And in some jurisdictions, if an argument is presented in a footnote, it is not preserved.
Miller aligns with Melkonian on footnotes. He wants to make it easy on the reader. If it is substantive argument, he says it should be in the main text. People sometimes zoom their briefs to the width of the reader, and then have to scroll up and down to see the footnotes. Footnotes are good for citation strings, not for a core part of the argument.
How can the electronic brief format be used creatively?
Judge Sacks says he loves to see charts, photos, timelines, maps, and any other visual aid that helps the reader understand the case. Of course, do not portray the imagery as evidence if it is not. But pictures and drawings help the reader visualize the facts. They provide a framework for remembering the case. If you cannot put the imagery in the brief, be sure to provide a reference early on. Charts and graphs help arrange the facts in the reader’s mind. They can be easily inserted into the brief or an addendum.
Miller and Shircliff agree with Judge Sacks. Imagery can be the best way to show the court you are right, the proverbial wisdom being that the most persuasive advocacy will “show, not tell.” For example, in a challenge to annexation of property, Miller used an image of the Octopus shaped city boundaries to make his case. In a construction defect case, he inserted the illustrative expert slides from trial into the brief. This is better than forcing the reader to go to the appendix. He was involved in a retaliation case once, where the county attorney took the position that the employees were saying horrible things about their boss and coworkers in text messages. The county attorney just quoted the text messages in the brief but could have done so with greater effect if he had inserted text bubbles. Be careful, though, not to overuse these sort of presentation techniques or it will diminish their effect.
Miller adds that electronic briefing has caused him to buck some conventions. He was for a while locked into headers that were the same size as the rest of the text. But legal writing seemed to be the only forum where writers were doing this. In other publications, headers were not the same size, were not in all caps, and were easy to read. He also varies the font in his headers from the body text. Miller also now provides more space in the margins because it is easier to read a document when the columns are narrower.
What software tools should legal writers be using?
Today’s technology provides legal writers a number of useful tools for drafting well-written legal briefs and opinions. The panelists encourage the use of five specific tools: automatic formatting features in word processing applications; table of authorities applications; “read aloud” technology; a legal writing editor such as BriefCatch; and cite-checking tools such as Quick Check.
