“Know your audience” is a fundamental rule of skillful writing. For lawyers writing briefs in the 21st century, a key part of knowing your judicial audience is knowing what device will display your brief. While some judges print briefs and read the hard copy, a quiet revolution is occurring: more and more judges are reading briefs primarily on iPads or other tablets. According to experts on legal writing, this change in reading should trigger a similarly significant change in writing.
But first, the data. No one keeps track of exact numbers and some judges use multiple formats— for example, reading in hard copy in the office and on an iPad at home—but a large and growing percentage of briefs are read on iPads. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask—the clerks will likely be happy to help.
Why you should care how the judge reads your brief
Why do iPads even matter? Won’t the words be the same, even if the display is different? Well, perhaps. The words themselves—that is, the content—may well be the same, but the style should differ. Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print.
How to write differently for an iPad
A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.
Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.
Next, lawyers should carefully consider what font to use in a brief that may be read on an iPad. Fonts designed for screen reading are significantly different from those designed to be printed. Most importantly, quality printers print at a much higher resolution—even the retina iPad display has only 264 pixels per inch, less than half the dots per inch of a quality laser printer. As a result, some of the best print fonts can become jagged or difficult to read at screen resolutions, especially when readers zoom in. This point should not be over-sold: Matthew Butterick, author of Typography for Lawyers, notes that “though the iPad has fewer pixels per inch than a laser printer, each of those pixels can be displayed in shades of gray (unlike the laser printer, which has to assemble multiple black pixels to make gray).” This brings the effective resolution of an iPad closer to print, at least in some circumstances. But the bottom line is that selecting a font for a document that may be read on an iPad is even more complicated than for a print document—Matthew Butterick discusses some of the issues online and has an even more thorough discussion in his book.
Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same. This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”
While adapting to the new medium, lawyers should check their local rules, since some of the better stylistic changes may actually be prohibited. For example, Eugene Volokh, author of Academic Legal Writing, notes that “double spacing lines would be especially bad on iPads, because it would halve the number of lines that can be seen at once on the (already fairly small) screen” but is nevertheless required by many court rules, at least for now. Matthew Butterick agrees that current court rules may limit iPad-appropriate style and suggests that “the advent of iPad reading [could] be the impetus for courts to set aside their existing document-layout rules, most of which are held over from the typewriter era.” We can certainly hope—and, one day, legal writing could even embrace more dramatic possibilities of digital briefs. But until then, lawyers should know how judges read their briefs and should write with their newly digital judicial audience in mind.