For the last few years, I’ve been particularly interested in what the shift to paperless courts—spurred by the ubiquity of electronic filing at the federal level and its expansion at the state level—means for legal writers. Through my CLE course, Pixel Persuasion: Legal Writing for the 21st Century, I’ve shared what I’ve learned about how to write more persuasive briefs designed to be read on-screen.
A few weeks ago, Judge Richard Wesley of the United States Court of Appeals for the Second Circuit shared some thoughts about his switch, and that of many of his colleagues on the bench, from reading paper briefs to reading briefs on computer and iPad screens. Judge Wesley started reading briefs on a computer screen about six years ago. It took him two or three months to feel comfortable enough working with pdf documents before he was ready to take his laptop onto the bench. A few years later, he switched to reading briefs and other documents in an iPad. Many of his fellow judges now read documents on iPads as well.
Judge Wesley actively engages with the documents he reads in electronic format. He explained:
My secretary downloads all briefs and records. I review the files, add bookmarks, highlight sections, and add comments on them and highlight aspects of them. I also add comment boxes in which I list questions I want to ask about a particular section. Then I synchronize the changes with my hard drive in my chambers so the document no longer resides on my iPad…. Also, my clerks produce bench memos for me, which I mark up, and they also include hyperlinks to the cases referred to so that clicking on the link takes me right into Westlaw.
The active engagement Judge Wesley describes is the key to successfully switching from reading on paper to reading on screen. Although a number of studies have found that people who read on-screen tend to skim, resulting in decreased performance on some measures of reading comprehension, new research has confirmed that actively engaging with the text by annotating it helps improve reading comprehension.
Judge Wesley’s experience is far from unique; in fact, it may be the norm. When Robert Dubose, author of Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World, interviewed appellate judges around the country in 2010, he found that most read briefs exclusively on paper. By 2012, however, fewer than half of the judges he interviewed were reading exclusively on paper.
The practical implications of Judge Wesley’s observations and the research discussed above are twofold. First, the judiciary’s shift from reading briefs on paper to reading on-screen is proceeding apace. Indeed, although there will probably always be some holdouts, I believe that, in courts that use electronic filing, the vast majority of judges will be reading briefs primarily or exclusively on-screen within a few years. Second, regardless of: (1) the medium in which your briefs are consumed; and (2) the reading characteristics of those judges who are reading on-screen (i.e., skimmers v. deep readers), it’s important to learn how to leverage both technology and principles of document design and web usability to to maximize the persuasive impact of your briefs.