This column has often considered the impact of technology on the written aspect of appellate advocacy. The best font choice, use of white space, and what is a "real" double space have all been discussed, sometimes in great detail. See, e.g., Eric J. Magnuson and Katherine Barrett Wiik, Briefly: Right-sizing your appellate brief in the digital age. Minn. Lawyer (Dec. 15, 2016); Luke Hasskamp and Ryan Marth, Briefly: Preparing an appealing brief in the digital age. Minn. Lawyer (Aug. 17, 2017). As William Pollard once said, "Those who initiate change will have a better opportunity to manage the change that is inevitable." As technological advances continue to reshape the legal profession, the best appellate advocates will seize upon every related advantage.
While those prior Briefly articles raise important issues for consideration when submitting appellate briefs, they are by no means an exhaustive analysis of how technology is changing the way lawyers and judges do their work. We recently came upon Joseph Epstein's November 2018 essay The Bookish Life: How to Read and Why, which started us thinking along slightly different linesspecifically, how the medium in which judges review our work (electronically or in print) may affect the outcome of a case. In his essay, Epstein considers whether there is a meaningful difference between reading on an electronic screen (computers and tablets) and reading words in print (books and magazines for those who can remember them). Epstein writes:
"I have come to believe that there is a mysterious but quite real difference between words on pixel and words in print. For reasons that perhaps one day brain science will reveal to us, print has more weight, a more substantial feel, makes greater demand on one's attention, than does the pixel. One tends not to note a writer's style as clearly in pixels as one does in print. Presented with a thirty- or forty-paragraph piece of writing in pixels, one wants to skim after fifteen or twenty paragraphs in a way that one doesn't ordinarily wish to do in print. Pixels for information and convenience, then, print for knowledge and pleasure is my sense of the difference between the two."
We have brushed up against this ideanoting a decided "pro-print" bentover the course of preparing submissions in our appellate practice as well as in various articles. Indeed, there is even research to support that gut feelingshared by our colleagues and learned authors and...