The golden rule for any type of writing is "write for the reader." Appellate judges read a lot, and how they read is changing. With Florida's shift to electronic filing, appellate judges are moving quickly toward a paperless environment. Many have already transitioned from reading case materials in paper format to reading them primarily on computer and tablet screens. Screen-reading on the appellate bench will only move closer to the norm when electronic records on appeal become mandatory next year. As the medium in which appellate judges read briefs has changed, so have their needs as readers. In the electronic age, writing for appellate judges means adapting briefs to their new needs as on-screen readers.
Form is the Gatekeeper to Communicating Substance
A brief's form plays a key role in persuasion. It not only affects how easily the argument can be understood and retained, it affects the attorney's credibility, the judge's mood, and ability to concentrate on the substance. (1) Before a brief can persuade a judge that the lower court was right or wrong, it must be readable. Readability is the combination of all elements in a piece of writing that influences the extent to which readers "understand it, read it at optimal speed, and find it interesting." (2)
This is nothing new, as good form has always been a necessary part of good (persuasive) legal writing. And good appellate attorneys know their job is to make brief-reading easy for busy judges who rarely have the time or patience to re-read and decipher sentence after sentence and argument after argument. (3) They design briefs to help judges understand their arguments quickly: They organize, write concisely, avoid jargon, effectively use headings, omit unnecessary words, use appropriate paragraph breaks, and relentlessly edit and proofread.
This article discusses tools for adapting traditional briefs to make them readable, usable, and persuasive to on-screen readers. These techniques improve the reading experience for screen readers without affecting the reading experience for judges who still read briefs in paper format.
Electronic Briefs and Records in Florida
Attorneys must now file and serve briefs and other filings in Florida's appellate courts electronically. (4) Appellate records are soon to be electronic as well. By June 30, 2015, lower tribunals statewide must transmit the record on appeal to the reviewing court electronically, using a uniform set of technical standards. (5) Until then, whether to require the record to be submitted electronically (and, if so, the technical requirements for doing so) is optional with each district court. (6) The First, Second, Third, and Fourth districts already require electronic records on appeal. (7) Electronic records are currently optional in the Fifth District. (8)
How Florida Appellate Judges Read
In a survey conducted for this article in June 2014, Florida's 68 appellate court judges (61 district court of appeal judges and seven supreme court justices) were asked to indicate the percentage of briefs and other case-related documents they read in paper and electronic media. Thirty-five judges (approximately 52 percent of those surveyed) responded. (9) All but three of the 35 judges indicated that they read at least 50 percent of briefs on a computer or tablet screen. (Of the three who do not read at least 50 percent of briefs electronically, one reads all briefs in paper format; one reads 25 percent of briefs electronically; and the other reads 40 percent of briefs electronically.) All but two of the 35 judges read at least 50 percent of appendices and record documents on a screen.
We Read Differently on Screens
It is worth the time and effort to adapt briefs for electronic media--people do not read the same way on screens as they do on paper. (10) Electronic media changes a reader's working environment. (11) First, electronic media gives readers mobility. With tablets, laptops, and remotely accessible networks, we can read from home and other places where there may be more distractions than in the office. Second, electronic media is itself designed for multitasking. Computers and tablets allow us to have multiple programs and windows open at the same time and freely switch between them. (12) We are alerted to each new email with a pop-up, sound, or both. (13) On average, it takes 64 seconds to recover from each email interruption. (14) In this new environment, we have many things competing for our attention and seldom read without interruption.
Beyond a distraction-filled reading environment, screens are just more difficult to read than paper. People read 10 percent to 30 percent slower when reading word for word on screen than on paper. (15) Readers make up for the slower time by skimming text instead of reading it in-depth. (16) Compared with written media, reading on electronic media is discontinuous and fragmented. (17) Screen-readers often become disoriented. Someone reading a paper document can see the whole document all at once, flip through the pages to get a sense of its organization, keep a hand on the table of contents for easy reference, etc. (18) The same type of orientation is difficult to achieve on a screen. (19)
Screen-reading is even more challenging for the judicial reader. Judges have different constraints, needs, and objectives than the general screen-reading public:
First, the reader must make a decision and wants from you exactly the material...