Writing (and Reading) Appellate Briefs in the Digital Age

Readers--appellate judges and appellate lawyers among them--are transitioning from reading paper documents to reading a mix of paper and digital documents. (1) Simultaneously, researchers are studying the impact that this transition has had on the process of reading. (2) Although these studies rarely focus on judges or lawyers, (3) many scientists are studying how our brains work when we read, and they are asking a lot of questions: How do we perceive digital text? How do we interact with it? Do we understand digital text better or worse than hardcopy text? If the answer is worse, what features or behaviors impede or promote comprehension and use of digital documents? How should our reading and writing change to accommodate the impact of the new technology? In the future, more and more of us will be using more and more digital sources for our reading and writing, regardless of whether or not digital reading is more effective. This essay will consider ways to make that reading easier, but it will usually not make recommendations as to particular software or hardware; instead, it will advise appellate lawyers and appellate judges--all of whom are professional readers and writers--about features they should look for when making decisions about digital reading. This essay will briefly review a slice of the voluminous research about how human beings read digital as opposed to paper text. In particular, it will discuss studies of knowledge workers (defined to include those who use or generate knowledge in their work) (4) and those who engage in active reading (defined as a reading process that includes non-sequential reading, searching a text, comparing texts, annotating, bookmarking, and the like). (5) It will then make suggestions for legal readers, legal writers, courts, and database providers as to how best to accommodate the process of digital reading. 1. HOW IS DIGITAL READING DIFFERENT FROM READING PAPER? In some ways, digital reading is just like paper reading: We are reading the same alphabet, and our eyes are moving from left to right as we read the words. This essay, however, will address two of the ways in which digital reading is different from paper reading. First, digital reading is different because of how we interact with digital text; our brains work differently when encountering digital text than when encountering paper text. (6) Second, digital reading is different because by definition, we read digital documents in a digital setting. That digital setting almost always comes with close-at-hand distractions that may interfere with efficient and effective reading and comprehension. 1.1 Digital Reading Realities To understand the impact of digital reading, it helps to understand some of the realities of paper reading. We read paper texts with more than just our eyes: We encounter paper texts physically as well as mentally. First, we are aware of the heft of the text: We hold a twenty-page handout very differently from a heavy hardbound book like Harry Potter and the Goblet of Fire. Our physical awareness has mental benefits. We maintain an awareness of the entire document, even as we focus on just one word or one page. When we turn a page, we feel the action, and we may also hear it. If we drop the book or document, or lose our place, we may see, feel, and hear the pages flip past us. With a paper document, we sense our approximate location in the document: We know, without conscious effort, whether we are near the beginning, the middle, or the end. Scientists note that "the reader can see as well as tactilely feel the spatial extension and physical dimensions of the text, as the material substrate of the paper provides physical, tactile, spatiotemporally fixed cues to the length of the text." (7) Our neuro-spatial awareness of the pages we read can help us to remember and locate text: Researchers have learned that paper readers often maintain a mental image of the physical location of words or information--remembering that an important sentence appeared, for example, in the upper-left quadrant of a page in the open book. …