Should Appeals Lawyers Write for the Screen or the Page?

With the Georgia Supreme Court, Georgia Court of Appeals, and other courts moving to e-filing, an important question arises. Should appellate lawyers write for the page or for the screen? Much would turn, it seems, on whether workflow within the courts matches the way work flows to the courts. Are the judges and justices reading briefs on their computer screens, or are they printing out the briefs and reading them the way they always have? We can probably assume that there is a mixture of workflow within the court, so you should probably write for both – unless, of course, you know your panel very well and can taylor the layout of your brief accordingly.

The ABA Journal recently posted a blog, written by Debra Cassens Weiss, that probes some of these questions. The ABA Journal’s article links to a couple of other blogs who have considered this question. Martin Siegel, in an article written at Texas Lawyer, discusses the necessity of structuring briefs for the screen rather than the page as more appellate courts require lawyers to e-file. Also, James Levy at the Legal Skills Prof Blog, questions whether much change is necessary if the “audience” is really printing out the briefs.

To throw another curveball at lawyers, some appellate judges are putting briefs into e-book platforms, which may be more like reading on paper than reading on a screen.

What Are Judges Doing With Your E-filed Briefs?

As far as the Georgia appellate bench goes, I am not sure. Generally, it would be safe to assume that the bench is more likely to read your brief in an electronic format now than a year ago. Judge Dillard, recently appointed to the bench, was a prolific blogger while in private practice. And the recent election for seats on the Court of Appeals and Supreme Court featured blogs, Twitter, Facebook and other social media. If we assume that computer savvy translates to a higher likelihood of a paperless workflow, then the judges deciding your case may not read your brief on paper.

It is interesting to see how some judges and justices nationwide are reading briefs. Justice Kagan reads briefs on her Kindle. Justice Scalia reads briefs on his iPad.

Why are jurists switching to a paperless format? Likely, for the same reason I am. I like being able to work anywhere, and it’s not fun to be home only to realize that the file is at the office. Lugging the record and briefs around is not particularly fun either.

Of course, reliance on the iPad or Kindle may mean that you shouldn’t change a thing because the reading experience is much like reading on paper.

What Should You Do Differently?

Now, assuming that at least some of your court may never see your brief on paper, what should you do differently.

First, be mindful of the fact that readers generally tend to read on a screen differently than they read on paper. Mr. Siegel writes that online readers:

jump around, skimming and seizing on bits of text. …Eye-tracking studies show they seek content in an F-shaped pattern, looking down the left side for structural cues and then focusing on headings and first sentences of paragraphs. Heaven help the content provider with important text consigned to the bottom right of the screen.

If your audience is going to read on the screen, then it is important to do a couple of things differently. The ABA article cites to research that suggest that lawyers do a few key things:

Put your most important points in headings and the first sentences of paragraph

* Use bullet points

* Quickly get to the point

* Use short paragraphs

* Divide chunks of information into smaller pieces. A great blogger says that “chunks are good”

I would add a few other suggestions. Some fonts work better on the screen than they do on paper. The screen renders them differently, even in the form of a pdf.

The last suggestion is that it may be important to keep online reading patterns in mind even if your audience will read your brief on paper. I have zero research to back this up, but I wonder if the amount of online reading we now do is hard-wiring us to read everything differently. If that is the case, then it may be time to make some changes.

The list of things above actually sounds like good writing advice in general, considering the sheer volume of material that the court must consume and respond to.

And if you are representing the appellant in a criminal case, there is even more reason to rejoice. Prosecutors are way behind the curve in Georgia in moving to e-filing and will take even longer to think about how they should repackage their briefs with the screen in mind. While this may sound way optimistic, it is cool to think that maybe a judge or justice working from home and logging in to the Court’s server might only have access to your brief while the prosecutor, who filed hers on paper, has her brief sitting in a filing cabinet somewhere at the courthouse.