Judges in North Carolina’s state and federal appellate courts don’t reach for printed briefs much anymore (the Chief Judge of the Fourth Circuit, Albert Diaz, has said that he and his colleagues routinely read briefs only on their iPads). Instead, they read briefs just like you or I would, on a screen.

If judges are reading briefs on a screen, should that information change the way that we write briefs? I think so. Even though reading on paper has distinct advantages (readers comprehend information better and retain more of it when they choose paper over a screen), I’m guessing most judges would be hard-pressed to give up the convenience of screen reading.

That leaves one solution: because the way judges read has changed, so too must the way that lawyers write. So, how do we do that?

Focus on Structure and Readability

I’ve never heard a judge praise a dense brief. To the contrary, most rail against wordy, repetitive briefs. The need for concision and structure isn’t new.

But concision and structure are now more important than ever. Researchers have concluded that screen reading changes the way we read. For years, readers practiced “deep reading,” meaning that they read and analyzed each word in a text. No more.

Screen reading changes the way that people approach text. Rather than read every word, screen readers are more likely to read in an “F-pattern”: They read the first few lines of each paragraph, but end up scanning the left-hand side of the paragraph for new information.

Because screen readers carefully read only the first few lines of a paragraph, legal writers must cater to that habit. How? There are ways to do so at both the section and paragraph level.

Improving Retention on a Section Level

On the section level, legal writers should use easy-to-read subject headers. Think about opening a brief addressing the elements of negligence and reading just the table of contents. Once upon a time, it might have been enough to label each section heading simply: “Duty,” “Breach,” “Causation,” and “Damages.” Not now.

Because the reader will carefully read only a few sentences, subject heading should be used to drive the argument forward. Instead of “Duty,” consider a more descriptive header, like “Mr. Smith did not owe Ms. Johnson a duty of care because she was not a foreseeable victim.” In the same vein, instead of “Damages,” consider using something like “Even if Mr. Smith proximately caused Ms. Johnson’s injuries, Ms. Johnson still has suffered no damage.” Those descriptive headers give the reader an idea of what the section is about and help orient them to the most useful information.

Improving Retention on a Paragraph Level

At the paragraph level, writers should use clear, direct topic sentences. Each paragraph in a brief should begin with a topic sentence that summarizes the paragraph’s main point or idea. These topic sentences anchor the reader, ensuring that the paragraph’s main point isn’t lost in the details.

Increase Whitespace

If you’re writing for a screen reader, get comfortable with whitespace. Whitespace is not just empty space — it’s a tool to guide the reader’s eye and enhance readability.

Why is whitespace so important? Reading on a screen can be daunting because a thoughtlessly designed paragraph can become impenetrable. The best topic sentence in the world doesn’t matter much if the reader is too intimidated by the paragraph. Whitespace thus provides a visual pause, cleaning up the page and allowing key messages to stand out.

There are a few ways to use whitespace effectively. For instance, a legal writer can use whitespace to separate sections, frame headings, or offset quotations.

Most often, effective use of whitespace means breaking dense text into shorter paragraphs, bullet points, or lists. Used correctly, whitespace breaks legal arguments into digestible parts, enhancing comprehension.

Consider a fact-to-fact comparison. In law school, I was taught to write sentence after sentence comparing the facts of my case to the facts of the controlling case or distinguishing my case from the case my opponent said controlled.

Rather than lumping all the similarities or differences into a single paragraph, it might help to write each comparison as a one-to-two sentence paragraph or even as a bulleted list. Doing so will help the reader appreciate each point and, hopefully, see the case your way.

Choose Your Font Carefully

Finally, we need to talk about fonts. There are entire books that discuss the best fonts for use in legal writing. I won’t rehash them.

Monospaced Fonts

For many years, North Carolina’s appellate courts required attorneys to use Courier. For perhaps as long, the Fourth Circuit’s opinions were published in a Courier-type font.

Appellate courts have moved away from monospaced fonts — fonts like Courier — for a reason. “Monospaced” is just a fancy way of saying that each letter or character takes up the same amount of space on a line. Monospaced fonts were designed for typewriters (so, too, was putting two spaces after a period).

We don’t write on typewriters anymore, so we should stop using monospaced fonts. They’re difficult to read. And if you’re in a court with a page limit (rather than a word limit), monospaced fonts take up more space than a proportionally spaced font.

Proportionally Spaced Fonts

Most lawyers and courts now use proportionally spaced fonts, like Times New Roman and Century Schoolbook. But some proportionally spaced fonts are better than others.

Let’s talk about Times New Roman. Developed in the 1920s by British newspaper the Times, it was designed for one purpose: to allow readers to skim text quickly.

That alone should give lawyers pause — especially when they’re writing for a screen reader. The reader is already spending less time with your text, devoting less mental energy to each word. Why make it even easier to disregard the text by using Times New Roman?

In addition, as an appellate lawyer, I’ve always felt that it was a good practice to mimic those who regularly practice before the Supreme Court of the United States. The Supreme Court Rules forbid the use of Times New Roman. See S. Ct. R. 33.1(b) (“The text of every booklet-format document, including any appendix thereto, shall be typeset in a Century family . . . 12-point type with 2-point or more leading between lines.”). What better explanation do you need?

Many legal writers now prefer fonts in the Century family. North Carolina’s appellate courts publish their opinions in Century Schoolbook. So, too, does the Supreme Court of the United States.

The Seventh Circuit, which endorses the use of Century-type fonts, gives this explanation:

Judges of this court hear six cases on most argument days and nine cases on others. The briefs, opinions of the district courts, essential parts of the appendices, and other required reading add up to about 1,000 pages per argument session. Reading that much is a chore; remembering it is even harder. You can improve your chances by making your briefs typographically superior. It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle. That’s a valuable advantage, which you should seize.

So, if you don’t take my word for it, take the Seventh Circuit’s. As a legal writer, your job is to make the judge’s life easier. Choosing a legible font can help in this endeavor.

Conclusion

As technology changes, legal writing must change, too. Lawyers are often resistant to change. But if we want to put our clients in the best position to win, we need to adapt and meet judges where they are — on their iPads.

February 6, 2024/by Litigation