Many judges are reading briefs on tablets, and a survey in 2012 showed 58% of federal judges were using an iPad to do court-related work. Presumably, that percentage has gone up over the past two years. Most of the judges on the Fifth Circuit read briefs on tablets, and everybody knows by now that Justice Scalia uses an iPad and Justice Kagan uses a Kindle.
The point is, if you file briefs electronically — and what litigator in 2014 doesn’t — then you need to be thinking about how to make your briefs readable on a tablet; that is where judges are reading them. Here are five tips for writing better briefs for tablets:
1. Put Citations In The Body And Use Hyperlinks
You probably know that Brian Garner — the legal writing guru — is a big advocate for dropping citations into footnotes to “declutter” legal writing. As a result of Garner’s years-long campaign, many lawyers have taken to footnoting their citations.
I am a big fan of Garner’s, but he is becoming wrong on this point if we are writing briefs for tablets. Judges do not want to constantly scroll back and forth between the body and the footnotes to see what you are citing. Footnoting citations might still be great for decluttering other forms of legal writing — letters, memos, white papers — if the work will be read in hard copy. But in your electronic brief, you should keep your citations in the body. In fact, you should try to eliminate footnotes altogether.
While you are at it, you should also hyperlink your citations, so that the judge (or her clerk) can immediately jump to the authority you are citing. There are guides out there on how to properly hyperlink (PDF), but eventually you might not even need to know how to do it yourself. The Fifth Circuit, for example, has developed an application that will automatically convert properly formatted record citations into hyperlinks to the electronic record. This came with a new local rule, effective December 1, 2013, instructing attorneys on how to format record citations to generate those links. Many courts have updated their rules to address e-briefs in one way or another — so always check the local rules!
2. Use Shorter Paragraphs and More Lists
It is much easier to consume information in small chunks, and with a tablet it is important to break up those long, dense paragraphs into smaller bites. So go through your brief and look for ways to split longer paragraphs into shorter ones. You do not want the judge to have to scroll from the beginning of a paragraph to the end.
Similarly, find places where you are using a list (in substance) and turn it into an actual list (in form). For example, in an old-school brief you might write something like this:
Dismissal is appropriate where (1) the abuses are the result of bad faith and are accompanied by a clear record of “contumacious conduct”; (2) the abuses are attributable to the client and not just to the attorneys; (3) the abuses substantially prejudice the opposing party; and (4) a less drastic sanction would not provide an adequate deterrent. Moore v. CITGO Refining and Chemicals Co., L.P., 735 F.3d 309, 315–316 (5th Cir. 2013).
For your e-brief, do it like this:
Dismissal is appropriate where:
(1) the abuses are the result of bad faith and are accompanied by a clear record of “contumacious conduct”;
(2) the abuses are attributable to the client and not just to the attorneys;
(3) the abuses substantially prejudice the opposing party; and
(4) a less drastic sanction would not provide an adequate deterrent.
Moore v. CITGO Refining and Chemicals Co., L.P., 735 F.3d 309, 315–316 (5th Cir. 2013).
That is way easier to read on a tablet. In fact, it is easier to read in hard copy, too. The trick is to make sure you are dealing with word-count limits and not page limits—because these kinds of changes won’t add words, but they will definitely add pages.
3. Pay Attention to Typography
You are a professional writer, so your writing should be professional — not just substantively and grammatically, but also visually. For starters, the font you are using matters. If you have not read Matthew Butterick’s Typography for Lawyers, you need to do that. He talks about font choice among other important typographical considerations. Portions of his book are available online, but you really need to have access to the entire book. I won’t repeat everything Butterick says; I will just say that you need to pick a good font for your electronic briefs if you want them to be readable on tablet.
You should also consider using a bigger font for easier reading on a small tablet screen. Use 14-point instead of 12-point font, for example. Some courts have actually increased their font-size requirements for this reason. Maybe go even bigger — to 15- or 16-point font — depending on the font you choose. Ideally the judge should not have to zoom in to read your brief comfortably, but do not make the font so big that it looks clownish.
Also, think about other typographical choices. For example, most courts require you to double-space your briefs. That is too much space and a bit awkward for a tablet, but one way to minimize the awkwardness is to set your line-spacing to exactly two times the font size, instead of using the default “double-space” setting. That is, if you are using a 14-point font, set your lines at 28-point spacing. This will typically put less space between the line, and you will still be conforming to the double-space rule.
Bottom line: Tip #3 is really all about reading and applying Typography for Lawyers.
4. Use Charts, Tables, Photos, and Other Visuals
If you have a word-count limit instead of a page limit — or if you are not at risk of going over your page limit — you should consider using visual aids where appropriate to make the brief-reading experience as easy and appealing as possible. (Just be careful, though, if you are using something like a photograph, that you’re not using what could be considered “evidence not in the record.”)
One of my favorite things to do, in a complicated case, is to provide some kind of visual road map that will help the court understand what needs to be decided and how those decisions should be made — particularly where the court must make one decision before it can move on to making another.
For example, in a Texas same-sex divorce case on appeal, we included this flowchart in one of our briefs:
This sort of thing is great in any brief — judges and their clerks always love it when you do something to make their job easier. Visuals are especially great in e-briefs because it is another way to break up blocks of text on a little screen, and to make the brief-reading experience resemble how we consume information online. Creating visual aids like this can take a little more time and work, but it is worth it.
5. Try It Before You File It
Before you file your e-brief, be sure you actually open it up on a tablet to see how it looks. You always have a chance to look over your hard copy brief before you drop it in the mail, but it is easy to electronically file a brief you have converted to PDF without ever looking at it as a PDF. You should not only open it up as a PDF on your computer, but also on a couple of tablets to make sure everything looks and works right. I recommend trying it on both the iPad and the Kindle, since those seem to be the two most popular tablets among judges. The last thing you want is to file your e-brief thinking it is as impressive as heck, only to find out later it was a hot mess.
These five tips will get you started, but for more on how to make your electronic briefs better, check out this guide created by a deputy clerk at the Texas Supreme Court. And if you are new to creating electronic briefs in the first place, this thorough how-to guide is very helpful.
Featured image: “Judge gavel and tablet computer on the table.