For the Defense, DRI, February 2018

Digital technology has changed how appellate briefs are consumed. Digital reading has become more and more similar to paper reading; it now allows users to highlight, annotate, and bookmark. Yet digital reading retains significant differences from paper reading. As appellate judges increasingly choose to read briefs digitally, lawyers must learn how best to write and design briefs to accommodate these differences. Ellie Margolis, Is the Medium the Message? Unleashing the Power of E-Communication in the Twenty-First Century, 12 Legal Comm. & Rhetoric: JALWD 1, 11–12 (2015).

This article will explore the effect of digital technology on reading and writing appellate briefs. The author intends to lay out what research has shown on reading and writing in the digital age to give legal writers and readers of appellate briefs insights to digest digital information efficiently and to persuade in a digital format effectively.

Technology and Reading Appellate Briefs

Digital technology is rewiring our brains. Robert B. Dubose, Legal Writing for the Re-wired Brain 1 (2012). Reading digitally is not only changing how we read but how our brains process information. Margolis, supra, at 10; T.J. Raphael, Your Paper Brain and Your Kindle Brain Aren’t the Same Thing, PRI (Sept. 18, 2014).

Digital reading differs from paper reading in many important ways.

We read differently on a screen, mainly because, as studies show, our brains interact differently with digital text. For instance, our eyes track differently on screens. Our eyes follow an “F pattern,” reading a paragraph’s topic sentence fully (and horizontally) with diminishing returns farther down the paragraph. See Figure 1.

Jakob Nielsen, F-Shaped Pattern for Reading Web Content, Nielsen Norman Group (Apr. 17, 2006). But for printed text, we read linearly across and down the page.

We also navigate differently on a screen. Margolis, supra, at 13. With digital documents, we scroll through a document instead of flipping the page, which changes our spatial perception. But for print text, we manually flip pages, occasionally encountering the smell of fresh ink or old dust. That chance encounter recruits an additional sense from our olfactory system to strengthen our brain’s interaction with the text.

Figure 1

Advantages of Reading Digitally

Reading digitally has advantages.

Multidimensionality

Digital reading is multidimensional. A reader can now view embedded files within an appellate brief, such as video or sound clips. With hyperlinks, a reader can access the entire record and case citations within one document. A reader can annotate, highlight, and mark up digital text in ways similar but different from print text.

Digital texts provide practically instantaneous access to information.

Digital texts are searchable for key words and phrases.

Digital texts allow seamless copying from one document to another.

Multitasking

Digital reading promotes efficiency (in theory). We can accomplish more tasks in less time. Especially on desktops, digital readers can open multiple windows with multiple tabs to analyze information. Dubose, supra, at 4. Digital texts are portable and can carry troves of information. The modern appellate practitioner’s office is mobile. While digital text has changed how our brains process information toward shallow learning, skimming, and decreased contemplation, we can allocate mental resources to other more complex tasks.

Disadvantages of Reading Digitally

For all the benefits of digital reading, the prudent practitioner must be consciously aware of its limitations.

Navigation and Spatial Awareness

A reader’s spatial awareness changes with digital texts. Screens lack the tactile experience of paper. Studies show that when readers try to find a particular piece of written information, they often remember where it appeared in the text. Ferris Jabr, The Reading Brain in the Digital Age: The Science of Paper Versus Screens, Scientific American (Apr. 11, 2013). For instance, we might recall that the majority opinion stated its holding in the right-hand corner at the top of the page below headnote five.

Paper text provides a different sensory experience compared to digital text. We engage additional senses with paper text. Physically holding and reading an appellate brief feels different than holding a tablet and reading that same brief on a screen. A reader can feel the paper and sometimes smell the ink. A reader can manipulate the medium itself by smoothing or folding a page or highlighting, annotating, or underlining sentences. The turn of a page makes a sound, albeit faint. Turning pages in a book is akin to leaving footprints on a trial: the rhythm and visible record of how far one has come make it easier to navigate and form a mental map of the terrain (and text). Jabr, supra.

In contrast, digital text gives far fewer physical cues to the reader. Mary Beth Beazley, Writing (and Reading) Appellate Briefs in the Digital Age, 15 J. App. Prac. & Process 47, 49 (2014). Every digital document feels and looks the same on a screen. Digital text tends to provide no structural cures, either. Without meaningful headings or other organizational signals, the reader struggles to organize the digital information coherently. Beazley, supra, at 50.

Multidimensionality and Increased Cognitive Demand

The multidimensionality of digital reading does not come without costs. Research suggests that reading on screens is more cognitively demanding and drains mental resources. Jabr, supra; Beazley, supra, at 51. Digital texts promote multitasking, which increases cognitive load and makes it harder to engage in deep reading and understanding. Beazley, supra, at 59. Scrolling texts drains more mental resources than turning a page because the digital reader must focus on both the text and how it moves. Jabr, supra. Prolonged periods of screen luminance may cause visual fatigue, such as eyestrain, headaches, and blurred vision. Id. Screen readers experience increased tiredness and increased feeling of stress. Id.

Digital reading negatively affects reading comprehension. Id. Studies suggest that readers comprehend less when they read digital text because “screen-based reading is more physically and mentally taxing than reading on paper.” Id.

Distractions

Distractions abound in digital reading. Digital reading reduces our concentration and focus. James Titcomb, Reading on Computer Screens Change how Your Brain Works, Scientists Say, The Telegraph (May 9, 2016). Seldom when we read digitally do distractions vying for our attention not interrupt our concentration (think email, hyperlinks, and internet browsing).

Following hyperlink after hyperlink often disrupts digital readers’ mental processes. Beazley, supra, at 52. The constant barrage of emails and the temptation of the internet may interrupt reading compre- hension of digital texts and thwart staying focused. One study showed that digital readers take more shortcuts: they spend more time browsing and scanning for keywords and are more likely to read a document only once. Jabr, supra. Another study reported that the distractions posed by digital platforms caused readers to resort less to cognitively demanding activities, such as deep thought and processing abstract ideas. Titcomb, supra.

Speed

Digital reading requires more time than paper reading. Dubose, supra, at 4. Because digital reading takes more time, readers reward themselves by skimming the text. Dubose, supra, at 4–5. One study showed that the “natural learning process tends to be shallower on screen than on paper.” Beazley, supra, at 57–58.

Screen reading is more difficult and encourages skimming. Studies show that digital text invites readers to skim, rather than absorb, the information. Images, headings, and short summaries, which provide visual variety and structures, attract readers’ eyes. Digital readers seek out short and simple text and avoid reading long text. Screen readers are able to read more quickly but less carefully. Only the most disciplined digital readers read linearly, mainly because digital text is difficult to read line by line.

Tips for Reading Digitally

Review first the document’s outline or organizational structure. Scroll through the document to determine approximately its size and general layout. Forming a good spatial mental representation of the physical layout of the text leads to better reading comprehension. If the document lacks an organizational structure, take the time to scan for headings. Attempt to ascertain the document’s main points by reading the topic sentences and conclusions.

Choose a reading device carefully. Bigger screens generally have better structural cues, especially devices displaying two pages at a time. Use a device with fixed pages as opposed to a device that requires scrolling. At the office, choose a high-resolution monitor.

Be an active reader. Engage with the digital text. Highlight and annotate important parts of the text. Identify which hyperlinks are worth pursuing, and click on them strategically. If the organizational structure of the document is not already bookmarked, do this, or have it done for you, to facilitate navigation. Leave comment bubbles next to key arguments or ambiguous phrases.

To eliminate distractions, turn off the sound and email notifications. One study showed that we switch tasks about every three minutes, and it can take over 20 minutes to regain our momentum. Brigid Schulte, Work Interruptions Can Cost You 6 Hours a Day. An Efficiency Expert Explains How to Avoid Them, The Washington Post (June 1, 2015). Viewed differently, we lose on average 60 minutes of productivity per day and as many as 10 IQ points when we allow our reading to be interrupted by emails and other distractions. Cheryl Conner, Wasting Time at Work: The Epidemic Continues, Forbes (July 31, 2015); Ron Friedman, The Cost of Continuously Checking Email, Harvard Business Review (July 4, 2014).

Develop a plan each time you begin to read an appellate brief. The author admits that there is no “secret sauce” or one-size- fits-all model to reading appellate briefs effectively and efficiently. But developing and sticking to a plan can help the reader engage with the material and avoid the lim- itations posed by digital reading.

Technology and Writing Appellate Briefs

Digital technology has changed, and it will continue to change, the way that we write. Are we adapting fast enough? The “means through which an idea is communicated influences our perception and understanding of that idea.” Margolis, supra, at 5. In other words, “our writing equipment takes part in the forming of our thoughts.” Nicholas Carr, Is Google Making Us Stupid? The Atlantic (July 2008). Because people read differently on screens, we, as advocates, must write differently to our audience.

Advantages of Writing Digitally

The ability to capture complex though on a digital platform instantaneously, while simultaneously allowing the writer to revise and edit accordingly, has revolutionized modern appellate practice.

Electronic Legal Research

The proliferation of electronic databases has allowed appellate practitioners to perform legal research anywhere with an internet connection. WestlawNext, Lexis Advance, VersusLaw, HeinOnline, Bloomberg, and Google Scholar are just some of the many databases available to appellate practitioners to research primary and secondary authorities. Most of these databases can even be accessed from a smartphone.

Efficiency

Typing allows us to put down our thoughts faster, allowing us more time to think critically. We develop a cognitive automaticity through typing.

Ease of Retrieval and Access

We can easily share and print electronic documents.

Storage Space

Digital technology has helped create the virtual office. We no longer need as much space to house copies of large records and research materials.

Advantages of Handwriting

Continuing to write longhand sections of appellate briefs still has its virtues. Studies on handwriting show better memory retention and idea generation compared to typing, which leads to deeper understanding and memory encoding for future application. Maria Konnikova, What’s Lost as Handwriting Fades, The New York Times (June 2, 2014).

Handwriting keeps the writer more engaged with the material. Id.

Handwriting automatically activates a unique neural circuit in our brains and exhibits greater neural activation. Id.

Writing is linked to improved creativity, critical thinking, and problem-solving skills. The Benefits of Handwriting vs. Typing, National Pen Blog (last visited Oct. 25, 2017).

Handwriting by itself avoids distractions inherent with digital technology.

Tips for Writing to a Digital Audience

Most principles of persuasive advocacy transcend technology. Conciseness. Simplicity. Clarity. Readability. But there are unique challenges to writing for a digital audience. We must adapt our appellate briefs to digital readers because that is largely the audience to whom we are writing.

Below are some tips to remember when writing to a digital audience:

  • Use “bookmarks” to allow the reader to move easily to different sections of the brief. (The bookmark feature of Adobe Acrobat is analogous to the “navigation pane” in Microsoft Word.)
  • Vary the length of paragraphs and sentences, but keep most of them short.
  • To aid structural orientation, when paginating a digital document, use “Page 1 of 10” rather than “Page 1.”
  • Use headings and subheadings often. Headings function as an overall roadmap of the story and argument and remind the reader of his or her place in the brief.
  • To assist reading comprehension, provide visual variety and structure, including headings, summaries, images, and typographic emphasis. The readability of a document improves a reader’s comprehension.
  • Use white space to give the reader a visual break. Using left-justified text accomplishes this goal better than fully justified text.
  • Avoid footnotes. They are even more distracting and difficult to track while reading digitally.
  • Use images, charts, and other graphics liberally. A picture is worth a 1,000 words, which may be especially helpful if a length restriction is a factor.
  • For electronic format, choose serif typefaces such as Century Schoolbook, Garamond, and Georgia. Studies have shown that long passages are easier to read and understand in a serif typeface.
  • Use a variable-width font, which will space the letters in a word proportionally as opposed to uniformly.
  • Prefer boldface to italics for emphasis.
  • Avoid underlining.
  • Avoid using all capital letters.
  • Use topic sentences that summarize the argument in each paragraph. Digital readers want instant gratification.
  • Draft a strong summary of the argument.
  • Use lists or bullet points to delineate examples or support for the argument.
  • Protect your cognitive resources. Minimize multitasking when performing deep, critical thinking.

Conclusion

Digital technology may never fully replace paper as a means to communicate. But digital technology is here to stay and will continue to shape the way that we practice law. As practitioners, we must embrace the virtues that this technology offers to improve writing appellate briefs.

DRI article.