Improving Brief Writing
First, appellate lawyers should take notice of technologies aimed to improve brief writing. Going well beyond a standard spell-check and grammar review, programs such as BriefCatch, PerfectIt, and WordRake are available to “analyze” briefs. Although the specific functions and forms of these three programs vary, they each strive to harness technology to improve the quality of brief writing. They do so through advanced proofreading (such as pointing out inconsistent use of two different correct spellings, like gray and grey) and technical analysis (such as rating briefs for “clarity,” “flow,” “sentence length,” and “punchiness”). Some of these programs can also analyze formatting, capitalization, punctuation, and citation style. They can even point out long sentences or string cites that may be ripe for editing. While these programs cannot yet develop the winning arguments or identify an argument’s flaws, they can use technology to help ensure that the words and syntax used to convey those ideas are as effective as possible.
Tailoring Briefs for Screens
Second, appellate lawyers should tailor their briefs to be read on screens. Some people have estimated that nearly three-quarters of judges read briefs on screens, and the number is likely higher for the judges’ law clerks. That reality should make a real difference when writing briefs because screen reading is very different from paper reading. See, e.g., Mary Beth Beazley, Writing (and Reading) Appellate Briefs in the Digital Age, 15 J. App. Prac. & Process 47, 48–58 (2014). For example, studies have shown that a screen reader takes longer to read a brief but may comprehend less, uses more visual and cognitive energy, and may be more prone to distraction. Studies have also shown that screen readers tend to review material in an “F” pattern—reading all of the first line, less of the second line, and then less of each line as the page continues—and are more likely to skim text rather than read every word. Jakob Nielsen, F-Shaped Pattern for Reading Web Content, Nielsen Norman Group (Apr. 17, 2006).
While clients may balk at the suggestion of filing a brief where the words actually appear in an “F” pattern, appellate lawyers can make other valuable adjustments to their briefs to enhance their readability. For one, key sentences or headers can be bumped from the bottom of one page to the top of the next to ensure that they are not overlooked. For another, footnotes can be avoided (even more than usual) to spare the reader from the need to scroll up and down to read them. In addition, brief writers should also consider editing briefs with the screen reader in mind, such as by doing the following:
- Shortening sentences and paragraphs
- Interspersing white space to allow for a break
- Relying on emphasis: bolding, italicizing, or underlining portions of text for special attention
- Using links to simplify access to internal citations to a record or appendix and to external URLs (when appropriate, of course)
- Including graphics and charts to illustrate particularly dense points
- Adding bullets to present lists of information
Courts also have a role to play in addressing the impact of technology on brief writing. In a report last year entitled “The Leap from E-Filing to E-Briefing: Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs,” the ABA Council of Appellate Lawyers offered a series of recommendations to courts to help them adapt to the reality of screen reading. For example, the council recommended that courts require PDF documents to be text searchable, impose word limits instead of page limits, and allow litigants to take advantage of navigation tools like bookmarks and numbering.
Conclusion
To be sure, technology will continue to develop and might even replace tasks currently done by lawyers, regardless of whether appellate lawyers like it. But for now (at least until the robots take over), wise appellate lawyers should consider adapting by (1) harnessing new brief-writing analytical and editing software and (2) modifying their briefs to be read effectively on a screen.
Katherine Rosoff is an associate with Jenner & Block in New York, New York, and Gabriel K. Gillett is an associate with the firm in its Chicago, Illinois, office.