Writing (and reading) appellate briefs in the digital age.

• Author: Beazley, Mary Beth
• Position: Performance-Focused Technology

Readers--appellate judges and appellate lawyers among them--are transitioning from reading paper documents to reading a mix of paper and digital documents. (1) Simultaneously, researchers are studying the impact that this transition has had on the process of reading. (2) Although these studies rarely focus on judges or lawyers, (3) many scientists are studying how our brains work when we read, and they are asking a lot of questions: How do we perceive digital text? How do we interact with it? Do we understand digital text better or worse than hardcopy text? If the answer is worse, what features or behaviors impede or promote comprehension and use of digital documents? How should our reading and writing change to accommodate the impact of the new technology?

In the future, more and more of us will be using more and more digital sources for our reading and writing, regardless of whether or not digital reading is more effective. This essay will consider ways to make that reading easier, but it will usually not make recommendations as to particular software or hardware; instead, it will advise appellate lawyers and appellate judges--all of whom are professional readers and writers--about features they should look for when making decisions about digital reading.

This essay will briefly review a slice of the voluminous research about how human beings read digital as opposed to paper text. In particular, it will discuss studies of knowledge workers (defined to include those who use or generate knowledge in their work) (4) and those who engage in active reading (defined as a reading process that includes non-sequential reading, searching a text, comparing texts, annotating, bookmarking, and the like). (5) It will then make suggestions for legal readers, legal writers, courts, and database providers as to how best to accommodate the process of digital reading.

1. HOW IS DIGITAL READING DIFFERENT FROM READING PAPER?

   In some ways, digital reading is just like paper reading: We are reading the same alphabet, and our eyes are moving from left to right as we read the words. This essay, however, will address two of the ways in which digital reading is different from paper reading. First, digital reading is different because of how we interact with digital text; our brains work differently when encountering digital text than when encountering paper text. (6)

   Second, digital reading is different because by definition, we read digital documents in a digital setting. That digital setting almost always comes with close-at-hand distractions that may interfere with efficient and effective reading and comprehension.

   1.1 Digital Reading Realities

   To understand the impact of digital reading, it helps to understand some of the realities of paper reading. We read paper texts with more than just our eyes: We encounter paper texts physically as well as mentally. First, we are aware of the heft of the text: We hold a twenty-page handout very differently from a heavy hardbound book like Harry Potter and the Goblet of Fire. Our physical awareness has mental benefits. We maintain an awareness of the entire document, even as we focus on just one word or one page. When we turn a page, we feel the action, and we may also hear it. If we drop the book or document, or lose our place, we may see, feel, and hear the pages flip past us.

   With a paper document, we sense our approximate location in the document: We know, without conscious effort, whether we are near the beginning, the middle, or the end. Scientists note that "the reader can see as well as tactilely feel the spatial extension and physical dimensions of the text, as the material substrate of the paper provides physical, tactile, spatiotemporally fixed cues to the length of the text." (7) Our neuro-spatial awareness of the pages we read can help us to remember and locate text: Researchers have learned that paper readers often maintain a mental image of the physical location of words or information--remembering that an important sentence appeared, for example, in the upper-left quadrant of a page in the open book. This physical awareness also acts as a structural cue, giving us a structural comprehension that makes it easier for us to grasp the organization of a paper document. (8)

   Digital text provides far fewer physical cues to the reader. On a tablet, for example, every document "feels" like every other document, whether we are reading a five-page report or War and Peace. Some devices may include a swishing sound, or try to use other methods (9) to tell us when we are turning pages, but if there is no sound, we may unwittingly riff through a dozen or more pages by leaving a thumb in the wrong place while we reach for a cup of coffee.

   If we are reading on a screen that requires scrolling, we may have no sense of "pages" at all. The scrolling text moves frequently, giving us no locational anchor for the words that we read. If the document is not well-suited to our device, we may find ourselves skipping ahead of the text and missing information accidentally. The lack of a physical document gives us no structural cues; if the document lacks meaningful headings or other organizational signals, we may have a hard time organizing the information mentally. Even if the document includes headings, the lack of physicality makes it harder to relate those headings to each other. These problems are exacerbated if we are reading on a small screen such as a tablet or a telephone. (10)

   Despite this list of negatives, there are many positives to digital reading. Modern software allows easy annotation of documents, including text highlighting. Further, "knowledge workers" must often quote text from documents; digital text is easy to block and copy accurately from one document to another. Digital texts are also highly portable: A writer can carry the world on a tablet or laptop; a judge can read briefs or cases anytime or anywhere, without lugging boxes of paper around. Finally, digital texts are searchable: Writers can rely on the computer's tireless brain to discover each use of a particular word or phrase, without worrying about missing a use due to fatigue or inattention.

   Researchers are busily conducting studies to see what kinds of software can help to make up for the downsides of digital reading. For example, some software displays a table of contents on an embedded screen to the left of a reading pane; other software moves the words along at a set rate of speed. (11) Some software highlights headings and other aspects of the text that are likely to contain crucial information. (12) Similarly, researchers are studying the desks and other workspaces that knowledge workers use, seeking guidance to design that ever-elusive "workplace of the future." (13)

   1.2 Indirect Impacts of Digital Reading

   Our comprehension of digital documents is affected not only by the way our brains perceive the digital text of the document we are reading; we are also affected by the package that the digital document comes in, and by the way we behave when we interact with digital documents.

   Some of the problems with digital reading are related to some of their benefits. Digital readers appreciate the ability to access many different documents at the same time, to move back and forth between reading one document and another, and to move between reading documents and searching the web. This unlimited access, however, imposes a mental cost. Scientists talk about the limits on our mental bandwidth by using the term cognitive load to describe "the mental burden that performing a task imposes on the learner." (14) Our brains can handle only so many mental tasks at any one time, whether those tasks are deciphering the written word, remembering previously learned information, or deciding between continuing to read a document and clicking a link to read related information. (15)

   We might believe that if some information--such as the information in a written brief--is good, then more information must be even better. But research has shown that many readers comprehend information more thoroughly if they finish one text and then read another, as compared to readers who must choose how to navigate a path through link after link after link, deciding what information to read and how much of it to read. (16) One study indicated that readers fared better when they faced a limited number of links (from three to seven, as opposed to between eight and twelve). (17) Of course, a judge who links to a court opinion faces an unlimited number of links, as each opinion contains links to documents that contain other links.

   Digital readers disrupt their mental processes when they click on link after link, or even when they click on a link, read for a while, and then navigate back to their original text. Scholars have noted that readers of complex documents must maintain a "situation model" that mentally organizes the information they are reading and integrates it with their existing knowledge. (18) Clicking on links can be problematic:

   Reading linked information in hypertext ... requires the reader to assume responsibility for developing a coherent representation of the textbase. It is up to the reader to develop a coherent understanding of the content by integrating information from the text with prior knowledge, and creating a more sophisticated situation model. To accomplish this integration, the reader must hold conceptual representations encountered in a given node in working memory while considering how the information from a new node might relate. (19) In addition to decisions about whether to click relevant links, digital readers must face other decisions as well: Emails and other work-related disturbances may interrupt their reading. Each time they hear a ding or feel a phone vibrating, for example, they know that they have a new email, and they must decide whether to access that email immediately or later. And of course, digital...