by Ellie Neiberger
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 needed for the decision — not less and not more. Second, the reader is a busy person, must read quickly, and cannot afford to read twice. Third, the reader is aggressively skeptical and — with predatory instincts — will search for any gap or weakness in your analysis…Fourth, the reader will be disgusted by sloppiness, imprecision, inaccuracy, or anything that impedes the reader’s decision-making process or hints that you might be unreliable. And fifth, the reader will be conservative about matters of grammar, style, citation form, and document format.20
This is doubly so for appellate judges, who read large volumes on a daily basis. The effectiveness of a brief in the digital era depends on how well the writer understands and anticipates the needs of screen reading appellate judges.21
Tighten-Up on Traditional Readability Techniques
Simplicity and clarity — the hallmarks of good legal writing in any medium — are even more important in electronically read briefs. Keep paragraphs short, since screen-readers are more likely to read a short paragraph than a long one.22 Similarly, avoid complex sentences, repetition, and needless words. Effective headings are particularly important, as they are one of the first things screen readers see on a page,23 and put time into crafting a strong summary of the argument.
Only File Text-Based PDFs
When judges are reading screens, they expect PDFs to be text-based. Only text-based PDFs can be searched and annotated and give judges the ability to select, copy, and paste characters. PDFs that are not text-based are viewed as technologically unsophisticated and will be met with frustration.
There are two ways to create text-based PDFs.24 The preferred way is to generate a native PDF from an electronic source, such as a Microsoft Word document. When possible, attorneys should sign documents electronically25 and convert them directly to PDF for filing, rather than print, sign in ink, and scan them.26 Documents that are electronically converted to a native PDF, rather than scanned, have a higher resolution (making them clearer and easier to read) and a smaller file size (making them quicker to load and navigate from page to page). Native PDFs are automatically text-based and may be searched and annotated without taking any additional steps. Unlike native PDFs, PDFs that are created by scanning paper documents are image-based (and cannot be searched or annotated) unless they are made text-based through optical character recognition (OCR). Attorney-generated documents, such as briefs and motions, are typically created on a word processor and should be converted to PDF electronically.27 If a scanned PDF must be filed (such as an agreement to be included in an appendix), it should be OCR’d before filing. OCR is available in most PDF software and can be enabled on many scanners.28
While Florida’s e-filing portal accepts Microsoft Word and Word Perfect files, it converts them to PDF.29 Since judges receive briefs in PDF format one way or another, the better practice is to convert them to PDF before filing and, thus, reviewing the PDF to make sure the brief’s appearance and formatting are unaffected by the conversion process.
Because footnotes interrupt the flow of reading the main text, it is questionable whether they should ever be used in briefs. Wherever you have stood on the footnote debate in the past, footnotes should be avoided. While reading footnotes in a paper brief causes some interruption, readers need only shift their eyes down and then back up to find their place in the main text. Footnotes, however, do not readily appear on the screen at the same time as the main text on many tablets. To read footnotes on tablets, judges usually have to take some extra step, such as scrolling down or zooming out,30 a process that increases the risk that footnotes will not be read.31
Help Judges Navigate
As discussed above, it is difficult for screen readers to get a good sense of a document’s organization and can become disoriented quickly. Judges need tools to help them visualize the entire document’s structure and navigate through it.
• Hyperlinked Tables of Contents — In a table of contents, judges should be able to click on each item listed (including argument headings and subheadings) and jump directly to its corresponding location in the brief through internal document hyperlinking. The easiest way to accomplish this is to follow the instructions for generating tables of contents in your word processor,32 and the generated table of contents will be internally hyperlinked automatically.
• Bookmarks in Briefs and Appendices — Much like hyperlinks in a table of contents, bookmarks are navigation tools that allow readers to quickly jump to any part of a PDF. Unlike a hyperlinked table of contents, which appears within the body of the brief itself, bookmarks appear in a panel in the PDF viewer alongside the document. While a reader can only see and use a hyperlinked table of contents when on the page in which it appears in the brief, a bookmarks’ panel remains fixed on the side of the document as the reader navigates from page to page.
Bookmarks are typically created in the PDF itself using the PDF viewer.33 All items listed in the table of contents (including argument headings and subheadings) should be bookmarked. In an appendix, a bookmark should be created for the index and each document that the appendix contains. The Second, Third, Fourth, and Fifth districts currently require appendixes to be bookmarked and specify how bookmarks must be named. 34 In courts that do not require bookmarks to be named a certain way, the name for each document in an appendix should designate how the document was marked in the index (e.g., “Tab 1”) followed by the document description contained in the index (e.g., “First Amended Complaint”). Using these examples, the bookmark would be named, “Tab 1 - First Amended Complaint.”
For sections of a brief that contain subparts, the subparts should be nested beneath the main section to create a bookmark hierarchy.35 For example, bookmarks for argument headings should be nested under the bookmark for the argument, and bookmarks for argument subheadings should be nested under the bookmarks for their corresponding argument headings.
• Hyperlinks to Legal Authority and the Record — While internal hyperlinks take the reader to another location in the same document, external hyperlinks take the reader to a location outside the document, such as Internet sources of legal authority (e.g., Westlaw) and documents contained in the record on appeal. When each case and record citation in a brief is hyperlinked, the judge can access the cited document (down to the precise page cited) with a click of the mouse or tap on the screen. Given the massive amounts of reading appellate judges do, the ability to read and verify representations and arguments instantaneously saves a significant amount of time and effort. External hyperlinks can be created manually36 or by using automated hyperlinking software available through Westlaw or Lexis.37
Briefs with external hyperlinks are extremely useful for judges, but are time consuming for the drafter (especially when created manually). As an alternative to manual hyperlinking or purchasing automated hyperlinking software, there are companies that specialize in hyperlinking briefs.38
• Preserve and Test Hyperlinks and Bookmarks in PDFs — When you are ready to put the brief from a word processor into PDF format, do so to preserve hyperlinks and bookmarks. If you create a PDF by printing and scanning a hard copy, the hyperlinks and bookmarks in the word processor document will not carry over to the PDF. Even when a word processor document is converted to a native PDF, test the PDF to be sure hyperlinks survived. Some PDF converters do not retain hyperlinks (such as the PDF printer in Microsoft Word).39 Some only do so if certain settings are enabled (such as the Publish to PDF function in WordPerfect). Before filing, click the hyperlinks in the PDF to confirm they are still active.
• Control How PDFs Appear When Opened — You can control how a PDF appears when a judge opens it. Because some judges might not turn on the bookmarks’ panel, it is best to set your briefs and appendices so that the bookmarks’ panel automatically opens on the left side of the PDF.40 This gives judges the option to use bookmarks and provides a roadmap of the brief or appendix.41 In Adobe Acrobat, you can control these settings under the Initial View tab in Document Properties. The ideal way to set the document is so that it opens in full-screen mode, with the magnification set to fit the page, in a single continuous page layout, with the bookmarks’ panel open.42 Judges may adjust these settings as they wish.
Today and in the future, attorneys must confront the challenges and distractions faced by a screen-reading judiciary. Briefs must not only be readable; they must be usable. Persuasive appellate briefs in the digital era will accommodate the new needs of appellate judges and continue to adapt as those needs change.
1 Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design Into the Text of Legal Writing Documents, 2 J. of the Ass’n of Legal Writing Directors 109, 110-11 (2004); Susan B. Duncan, Pursuing Quality: Writing a Helpful Brief, 30 St. Mary’s L. J.1093, 1102 (1999) (Form “is critical to your credibility and your reader’s ability to concentration the substance of the discussion.”); Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 Legal Writing: J. Legal Writing Inst. 257, 278 (2002) (“The care with which an advocate proofreads a brief is usually indicative of the care with which he [or she] has made his [or her] argument.”).
2 William H. DuBay, The Principles of Readability 1, 3 (2004) (internal citation and quotation omitted), available at http://www.impact-information.com/impactinfo/readability02.pdf.
3 E.g., Interview by Howard J. Bashman with Paul J. Kelly, Jr., Circuit Judge, U.S. Court of Appeals for the 10th Circuit (Jul. 6, 2004) (“We review hundreds and hundreds of briefs every year; you don’t want us distracted from the merits by missing verbs, misspelled names, incorrect citations, improper grammar or sentences that run for pages.”), http://howappealing.law.com/20q/2004_07_01_20q-appellateblog_archive.html#108908643033677957.
4 Fla. R. Jud. Admin. 2.516 (service of pleadings and documents); Fla. R. Jud. Admin. 2.520(a) (electronic filing mandatory); Fla. R. Jud. Admin. 2.525 (electronic filing).
5 In re Electronic Records on Appeal, Fla. Admin. Order No. AOSC14-28 1 (Fla. 2014), available at http://www.floridasupremecourt.org/clerk/adminorders/2014/AOSC14-28.pdf; see Florida Courts Technology Commission, Florida Appellate Courts Electronic Record Technical Specifications (2013), http://www.flcourts.org/resources-and-services/court-technology/erecord.stml.
6 In re Electronic Records on Appeal, Fla. Admin. Order No. AOSC14-28 at 2.
7 Electronic Filing of Appellate Records, Admin. Order No. AO2D13-04 (Fla. 3d DCA 2013), available at http://www.3dca.flcourts.org/Clerk/AO3D13-4Revised.pdf; Electronic Filing of Appellate Records, Admin. Order No. 2013-4 (Fla. 2d DCA 2013), available at http://www.2dca.org/Clerk/e-portal%20info/eportal%20orders/13-4.pdf; Electronic Filing of Records on Appeal, Registration and Filing of Court Reporter Extensions of Time, and Other Pleadings Filed After September 1, 2010, Admin. Order 10-4 (Fla. 1st DCA 2010), available at http://www.1dca.org/orders/10-4.pdf; Electronic Filing of Appellate Records, Corrected Admin. Order AO2013-03 (Fla. 4th DCA 2013), available at http://www.4dca.org/opinions/AO2013-03-2.pdf.
8 Electronic Filing of Appellate Records from Citrus and St. Johns Counties, Admin. Order No. AO5D12-01 (Fla. 5th DCA 2012); Electronic Filing of Appellate Records from Lake County, Admin. Order No. AO5D13-03 (Fla. 5th DCA 2013); Electronic Filing of Appellate Records from Seminole County, Admin. Order No. AO5D13-04 (Fla. 5th DCA 2013), available at http://www.5dca.org/ordersframe.shtml.
9 The number of judges who responded from each district court is as follows: Florida Supreme Court, one; First District, nine; Second District, seven; Third District, seven; Fourth District, five; Fifth District, six.
10 E.g., Robert B. Dubose, Legal Writing for the Rewired Brain: Communicating in a Paperless World 1, 3-6 (2010), available at http://www.texasbarcle.com/Materials/Events/10949/140308_01.pdf; see Maria Perez Crist, The E-Brief, Legal Writing for An Online World, 33 N.M. L. Rev. 49, 68-78 (2003) (for a thorough discussion on how screen reading is different from reading on paper).
11 Dubose, Legal Writing for the Rewired Brain: Communicating in a Paperless World at 1-4.
12 Id. at 4.
14 Id. (citing Thomas Jackson, et al., The Cost of Email Interruption 5 (2001), available at http://interruptions.net/literature/Jackson-JOSIT-01.pdf).
15 Id. (citing Sri H. Kurniawan and Panayiotis Zaphiris, Wayne State University, Reading Online or on Paper: Which is Faster? pt. 4 (Aug. 2001), http://users.soe.ucsc.edu/~srikur/files/HCII_reading.pdf); Farris Jabar, The Reading Brain in the Digital Age: The Science of Paper versus Screens, Scientific American (Apr. 11, 2013), available at http://www.scientificamerican.com/article/reading-paper-screens/.
16 Dubose, Legal Writing for the Rewired Brain: Communicating in a Paperless World at 4-5 (citing Jacob Nielsen, F-Shaped Pattern for Reading Web Content (Apr. 17, 2006), www.useit.com/alertbox/reading_pattern.html); George Buchanan and Tom Owen, Improving Skim Reading for Document Triage 83-84 (2008), available at http://cs.swan.ac.uk/~cstomo/publications/IIiX08.pdf.
17 Dubose, Legal Writing for the Rewired Brain: Communicating in a Paperless World at 6 (citing Vitaly Friedman, 10 Principles of Effective Web Design, Smashing Magazine (Jan. 31, 2008), available at http://www.smashingmagazine.com/2008/01/31/10-principles-of-effective-web-design/).
18 Crist, The E-Brief, Legal Writing for An Online World, 33 N.M. L. Rev. 49 at 71, 74.
20 Id. at 77 (quoting Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy and Style 287 (4th ed. 2001)).
21 Id. at 67.
22 Dubose, Legal Writing for the Rewired Brain: Communicating in a Paperless World at 7 (citing Christina Laun, Scientific Web Design: 23 Actionable Lessons from Eye-Tracking Studies (Nov. 13, 2007), http://www.virtualhosting.com/blog/2007/scientific-web-design-23-actionable-lessons-from-eye-tracking-studies/).
23 Id. at 6.
24 E.g., David Nuffer, District Judge, U.S. District Court for the District of Utah, Types of PDF Documents, http://www.utd.uscourts.gov/judges/PDF_Types.htm. Judge Nuffer has a webpage dedicated to PDF skill and help files, which contains many other useful resources, http://www.utd.uscourts.gov/judges/nuffer_resources.htm#PDF.
25 Fla. R. Jud. Admin. 2.515(c)(1)(C) (authorizing “electronic signature indicator using the ‘/s/,’ ‘s/,’ or ‘/s’ [name] format….”).
26 Florida Courts E-Filing Authority, ePortal Document Submission Standards (Feb. 2013), available at http://www.flclerks.com/e-Filing_Authority/Resources/Manuals/ePortal_Document_Submission_Standards.pdf; see Carolyn Weber, Florida Courts E-Filing Authority, Frequently Asked Questions and Other Useful Information 7-8 (Mar. 20, 2014), available at https://www.myflcourtaccess.com/authority/faqs.html.
27 The Fourth District Court of Appeal, How-To Guides for Creating PDFs, http://www.4dca.org/opinions/edca%20e-access.shtml. See Adobe Acrobat XI Quick Start Guide, Create PDF Files with Adobe Acrobat XI (for instructions on how to convert word processor documents to PDF using Adobe Acrobat), available at http://wwwimages.adobe.com/content/dam/Adobe/en/products/acrobat/pdfs/adobe-acrobat-xi-create-pdf-files-tutorial-ue.pdf; David Nuffer, District Judge, U.S. District Court for the District of Utah, Converting a Scanned PDF to Text PDF, http://www.utd.uscourts.gov/judges/nuffer_resources.htm#PDF. Note that conversion to PDF can be performed on Adobe Acrobat Standard and Professional Edition software, but not with the free Adobe Reader.
28 Adobe Acrobat XI Quick Start Guide, Scan Paper to PDF and Apply OCR with Adobe Acrobat XI (for example, in Adobe Acrobat, select View > Tools > Text Recognition, then click “In this File.”), available at http://www.adobe.com/content/dam/Adobe/en/products/acrobat/pdfs/adobe-acrobat-xi-scan-paper-to-pdf-and-apply-ocr-tutorial-ue.pdf.
29 Carolyn Weber, Florida Courts E-Filing Portal, Frequently Asked Questions and Other Useful Information at 7 (Mar. 20, 2014), http://www.flclerks.com/e-Filing_Authority/Resources/Materials/E-Filing_Portal_FAQs_v4_March_20_2014.pdf.
30 Daniel Sockwell, Writing a Brief for the iPad Judge, Columbia Bus. L. Rev. (2014), available at http://cblr.columbia.edu/archives/12940.
32 See Central District of California, Attorney Guide to Hyperlinking in Federal Courts (for Microsoft Word Users) 1, 4-9 (June 6, 2014) (for instructions on generating hyperlinked tables of contents in Microsoft Word), available at https://www.cacd.uscourts.gov/sites/default/files/documents/Hyperlinking_Attorneys_Word.pdf; see also Microsoft Office Support, Create a Table of Contents Automatically, http://office.microsoft.com/en-us/word-help/create-a-table-of-contents-or-update-a-table-of-contents-HP010368778.aspx#_Toc287271760.
33 Fourth District Court of Appeal, Creating Bookmarks within Adobe Acrobat, available at http://www.4dca.org/opinions/bookmark-tutorial3.pdf.
34 Id. at 3; Electronic Filing of Appendices, Admin. Order No. 2013-2 (Fla. 2d DCA 2013), available at http://www.2dca.org/Clerk/e-portal%20info/eportal%20orders/electronic_filing_appendices.pdf; Electronic Filing of Appendices, Admin. Order No. AO2013-04 (Fla. 4th DCA 2013), available at http://www.4dca.org/opinions/AO2013-04.pdf; Electronic Filing of Appendices, Admin. Order No. AO3D13-05 (Fla. 3d DCA 2013), available at http://www.3dca.flcourts.org/Clerk/AO3D13-5.pdf; Electronic Filing of Appendices, Admin. Order No. AO5D14-01 (Fla. 5th DCA 2014), available at http://www.5dca.org/Clerk/Administrative%20Orders/AO5D14-01%20E-FIling%20Appendices.pdf.
35 See Bringham Young University Library, Working with Bookmarks, http://etd.lib.byu.edu/PDFCreation/WorkingwithBookmarks.pdf (for instructions for nesting bookmarks); Adobe Acrobat, Create a Bookmark Hierarchy, http://help.adobe.com/en_US/acrobat/X/pro/using/WS58a04a822e3e50102bd615109794195ff-7cbe.w.html.
36 See Central District of California, Attorney Guide to Hyperlinking in Federal Courts (for Microsoft Word Users) at 21-27 (for manual hyperlinking instructions).
37 See id. at 17-20 (for an evaluation of automated hyperlinking software and instructions); see also Hyperlinking in Federal Court (for many resources for hyperlinking in briefs), http://federalcourthyperlinking.org/state-court-hyperlinking-resources/.
38 Ernie Svenson, eBriefing: Overview of How Lawyers Can Create Useful Hyperlinked PDF Files (Jan 7, 2014), http://pdfforlawyers.com/ebriefing/.
39 David Nuffer, Judge, U.S. District Court for the District of Utah, Preserving Hyperlinks in PDF Conversion, http://www.utd.uscourts.gov/judges/Hyperlinks_Conversion.htm.
40 Michael A. Cruz, Deputy Clerk, Supreme Court of Texas, Electronic Briefs, Formatting for an iPad (or Any Other Medium) 1, 5 (2013).
Ellie Neiberger practices appellate advocacy and litigation with Bryant Miller Olive, P.A., and is a resident of the firm’s Tallahassee office. She thanks all appellate judges who participated in the survey conducted for this article for their time and input.
This column is submitted on behalf of the Appellate Practice Section, Ceci Culpepper Berman, chair; Brandon Christian, editor; and Chris McAdams and Kristi Rothell, assistant editors.