How to write for the “iPad judge”

No brief would look good on my pathetic iPad, which has some of the pieces of its broken screen held on with tape!

Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly.

As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on 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.” Okay, I already minimize my footnotes, I can use whatever font works best, but that last tip — “avoid confusing hierarchical organization” — sounds like trouble to me:

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.”

I think it would be far better to use the usual numbering system. For one thing, I think the “problem” identified is a mythical one. The reader of a physical brief might be able to estimate quickly whether the Section A on the page is under heading I, II, III or IV, and lose that advantage in an eBrief, but so what? What’s important about the superior heading is not its number, but what it says. Thus, it is the ease of actually finding the superior headings that is important. Whether in a physical brief or an eBrief, it’s easy to bookmark the table of contents and locate the superior headings easily. I have never liked scientific numbering because it doesn’t take too much depth to make the numbering unwieldy. “1.1.1” is a lot more cumbersome than a single character, and is worse. I would hate to see courts mandate scientific numbering.

The piece has some links to some other fun reading, too, including this coverage of the Fifth Circuit system for electronic briefs, in which the court does all the work of hyperlinking to authorities (and soon, hyperlinks to the record) rather than requiring the submitting party to do the work before submitting the brief.