The digital age has drastically changed the way we read and, for most of the population, also the way we write. But for the legal profession, legal writing has pretty much stayed the same. Is it time we change that? Does the legal profession need to start thinking about writing differently because of the way people read?
“Yes” and “yes,’’ were the answers to those questions says Houston appellate lawyer Robert Dubose, who authored a groundbreaking study, “Legal Writing for the Rewired Brain: How to Communicate in the Paperless Worlds.” He was the moderator for “Legal Writing for Screen Readers,” a panel discussion held at the ABA Midyear Meeting in February in San Diego that explored the challenges of effectively writing legal briefs. The panel’s other participants were Judge Judith McConnell, administrative presiding justice on the Court of Appeal, Fourth Appellate District of California; Judge M. Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit in San Diego; and Clare Ryan, law clerk to Judge McKeown.
Dubose said digital reading is different from reading print. Today’s readers want their information quick, short, concise and simple. He listed five qualities of screen or digital readers that he said require writers to adapt:
- You must compete for their attention because they have access to unlimited information.
- They are impatient for quick answers, which they can get from Google or Westlaw.
- They multitask – many have three to five screens open at once.
- They skim, do less-sustained reading and are bombarded with texts and emails.
- They struggle with navigation.
But he pointed out that there are benefits as well, including speed of access, cost savings and portability.
Judge McConnell said that while in general she prefers to read from paper, she favors the courts moving to e-filing of documents, even as she finds many “are still printing out everything.” She said she finds reading briefs easier electronically. “When I have paper briefs, I’m flipping pages and that is difficult when you’re looking for information quickly.”
McKeown, who calls herself the “E-Judge” but admitted she still uses paper, says screen reading is easy to access because it’s electronic and she likes the “brief bundle” she gets daily from her law clerks with all of her cases. Another plus, she said, is it’s easy to hyperlink in the briefs to other cases.
Interestingly, Ryan, a millennial, said that in her law clerk duties she prefers working on paper. “I like to do my first pass (read) on paper and then go to the screen when I’m trying to condense the briefs for the judge,” the 2013 Yale graduate explained. “With paper, I can use Post-it notes to mark key areas of interest or quotes I want to use and also I find I’m more thorough in reading the whole story and that I can extract more when I’m reading from paper.”
Dubose, a partner with Alexander Dubose Jefferson & Townsend in Houston, listed seven tips for writing to screen readers. They are:
- Create visible structure. Screen readers need visible structure to navigate a page, including such tools as frequent headings Frequent headings (bold-face lead-in to items like “Terminate Agreement ……) and tables of contents.
- Write summaries. Get the important information up front, which is critical for today’s readers. “There is nothing I hate worse that reading through a brief and not finding out what I need to know until near the bottom,’’ says McKeown. “Give it to me right up front.”
- Break out information with lists, bullets, tables. For example, instead of one paragraph talking about the four elements of negligence, break those elements into a list 1, 2, 3, 4. But not everyone likes lists. “When I see a bunch of bullets, I see a lazy law clerk,’’ Judge McKeown warns.
- Use white space, which can be created with shorter sentences, shorter paragraphs, headings, lists and bullets.
- Use visuals such as a flow chart or illustrative photograph.
- Stay simple in document design. Follow expected conventions; no strange fonts or fancy formats; and use ordinary capitalization, avoid ALL CAPS and First Word Caps.
- Know what technology your court is using to read.
Judge McConnell offered another piece of advice. “If you are converting a chart or graphic to print, make sure it’s just as legible on paper as it is on the computer screen,’’ she said.
And Judge McKeown expounded on the importance of structure in writing, whether on paper or electronically. Structure, she said, causes brief writers to be “cleaner in what they write and hopefully to writer shorter.”