Embracing Change: Strategies for Effective Legal Writing in the Digital Age

It’s no secret that 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’re reading briefs just like most “normal” people consume information—on a screen. 

What do we do with that information? Does it change the way that we write briefs? It should. Studies show that reading on paper has distinct advantages—readers comprehend information better and retain more of it when they choose paper over a screen. And while that fact might suggest that judges should always reach for a printed brief, I’m guessing most 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. The rest of this article sets out some tips on how to do just that.

1. Focus on Structure and Readability.

I’ve never heard a judge praise a dense brief. In fact, I think that every CLE or bench–bar conference I’ve ever attended has featured one (or more) judges railing against wordy, repetitive briefs. The need for concision and structure isn’t new.

But concision and structure are now more important than ever. As screen reading becomes more common, researchers have observed changes in the way we read. For hundreds of years, people reading books engaged in “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. To understand this approach, 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.

Given the reader’s propensity to read only a few sentences, each 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.

2. Increase Whitespace.

If you’re writing for a screen reader, you should 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 single thoughtlessly designed paragraph can become inscrutable. 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 and helps declutter the page, 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. 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 your screen-reader judge appreciate each point and, hopefully, see the case your way.

3. 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. These fonts were designed for typewriters.

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), they always take up more space than the alternative, 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 interacting with the text in a more “shallow” way. 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. 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 has to 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. 

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© 2024 Ward and Smith, P.A. For further information regarding the issues described above, please contact Chris S. Edwards.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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