Tuesday, December 7, 2010

Will the internet reading habits of judges change the way lawyers write appellate briefs?

A recent book, The Shallows, argues that the internet is changing the way we read text online - from linear reading to a more superficial skim that causes the reader's eye to jump around the page.  Now this article from the Texas Lawyer is suggesting that as more appellate clerks and judges read briefs online as the result of e-filings, lawyers may need to accommodate this "new" reading style in their written briefs.

In his book "Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World," Houston appellate lawyer Robert Dubose points out that screen readers don't read linearly but rather jump around, skimming and seizing on bits of text. Eye-tracking studies show they seek content in an F-shaped pattern, looking down the left side for structural cues and then focusing on headings and first sentences of paragraphs. Heaven help the content provider with important text consigned to the bottom right of the screen.

Dubose recommends catering to screen readers by placing the most important content in headings and first sentences of paragraphs, using bullet points and lists, simplifying sentence structure, shortening paragraphs, using visual aids, avoiding synonyms, and adopting other techniques drawn from the study of making websites more user-friendly. "Legal writers must enable impatient readers to get to the point of the argument in a matter of minutes," he writes.

He's not alone. In a 2003 article in the New Mexico Law Review, University of Dayton School of Law professor Maria Crist advocated a similar "tech rhetoric" based on an "online style" of brief-writing that prizes brevity, features short paragraphs, and condenses "chunks" of information "into small manageable pieces."

The article assumes that these clerks and judges will read entire briefs online rather than printing a hardcopy as many readers still do when the material is more dense or challenging.  I'm also skeptical that lawyers, and judges as readers-decision makers, will want to sacrifice thorough analysis in order to accommodate an online reading style that's associated with blogs, online newspapers and websites as compared to more intellectually demanding material.  Conscientious judges must still engage deeply with their cases in order to reach a correct result and thus that's the audience attorneys need to address rather than the more casual web reader.

This is interesting stuff and you can read more about it here.

Hat tip to Law.com.



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In response to Lisa's comment, below, based on the interviews I've read about the reading styles of "deep thinkers" such as researchers and scholars, it's not just the position of the screen (desktop versus e-readers like Kindle) that matters to those who prefer books over screens for some types of reading. Rather, it's the fact that these readers like to have several books open in front of them at once, that they like to take notes (in the margins and on separate pages) and highlight while they read, and that it's easier to flip back and forth between pages (and see how the passage in front of them relates to the larger work). "Deep" reading typically involves more physical activity on the part of the reader than moving one's eyes across the page. While e-books with hyperlinks can make toggling between multiple sources faster and easier than spreading several p-books in front of you, hyperlinks also tend to distract as the reader gets led further and further away from the original source. That's the challenge - I think everyone is going to have to develop techniques and strategies for creating an atmosphere of deep concentration when particular projects call for it - whether it's shutting down the laptop for an afternoon or using a p-book instead of an e-book because the physical act of reading and writing notes in the margin will better encode the material in one's memory.

Posted by: Jim | Dec 21, 2010 3:40:30 PM

Another potentially significant variable is whether judges are reading briefs on traditional desktop or laptop computer screens, or (as Justices Scalia and Kagan do) on the screens of e-readers (the iPad and Kindle, respectively). The ability to hold an e-reader in the same way one holds a book (or hard-copy brief) may trigger the same "deep reading" associations that are triggered when a judge picks up a hard-copy brief.

Posted by: Lisa Solomon | Dec 21, 2010 5:57:19 AM

Thanks for the great comment and I agree a study of the online reading habits of attorneys and judges is an article waiting to be written.

I believe there are already some studies showing that people, generally, affect different reading styles depending on whether they are reading online or hardcopy.

I've also read a couple articles in the academic press (the NYT did a nice piece on this topic a few months ago in which it interviewed several "experts") in which a consensus seemed to be emerging among academics, researchers and "serious" readers that they've had to develop two ways to read - online is fine for light and pleasure reading but books are preferable for more weighty material.

Of course that doesn't mean a person can't read online material more deeply and analytically but that as a practical matter people are varying their reading styles depending on the information delivery system.

Interestingly, the Chronicle of Higher Ed published a survey recently showing that undergraduate students prefer p-books to e-books.

Posted by: Jim | Dec 8, 2010 7:29:38 AM

You wrote:

"I'm also skeptical that lawyers, and judges as readers-decision makers, will want to sacrifice thorough analysis in order to accommodate an online reading style that's associated with blogs, online newspapers and websites as compared to more intellectually demanding material."

I think that assumes that online readers are not capable of thorough analysis if reading online. Perhaps a study of judges/clerks/attorneys' online reading habits is in order. ;-)

Posted by: Evelyn Calogero | Dec 8, 2010 5:41:01 AM

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