The Minnesota Supreme Court recently made several amendments to the Rules of Civil Appellate Procedure. One change that struck a number of my colleagues was that parties will submit fewer paper briefs. I actually got an email message asking, “Why would we only send five copies of the brief to a court with seven judges?”
Here’s the simple answer: Minnesota’s appellate courts are drastically reducing their consumption of paper. Not only are they reducing the number of paper copies that lawyers must submit, but internally, they also increasingly circulate important documents and information electronically. As I have written before, the move is as much about efficiency and cost savings as it is convenience. It takes fewer person hours to distribute even large documents electronically than it does to copy, sort, staple, and deliver. While that change may seem inconsequential to some — or to others, at best only mildly interesting — it has significant consequences for appellate advocacy.
The rule changes in a nutshell
Recent Minnesota Supreme Court and Minnesota Court of Appeals standing orders changed the number of copies to be submitted to the court. Amended appellate rule 131.03 permits the appellate courts to specify the required number of copies through a standing order (or by another court order). The Supreme Court will require parties to include five paper copies of their briefs (three bound, two unbound), and the Court of Appeals will also require five copies (four bound, one unbound). Both standing orders, as well as the other amended rules of civil appellate procedure, will become effective for appeals pending on or after July 1, 2014.
Transitioning from paper to electrons
Electronic distribution of briefs and other materials concerning the cases pending before the courts means that when judges and justices prepare to consider a matter, they will no longer receive a huge pile of paper ceremoniously deposited in their chambers. Instead, they will likely receive all that information electronically. For example, the Supreme Court’s prior practice was that after the clerk’s office received petitions for further review, the commissioner’s office circulated the Court of Appeals’ opinion and a detailed memo that summarized the arguments for and against review. The actual petitions were not provided to the justices unless requested.
Because the cover memos were detailed and objective, this practice worked well, although I found it a little disconcerting when I first joined the court. Similarly, each judge or justice would receive the paper briefs and appendices in the cases they were to hear, delivered in separate files along with the calendar for the coming arguments. Law clerks would add to the paper collection with bench memos and any additional research requested.
Those practices have now changed dramatically. For example, when the justices are ready to consider petitions for further review, the petitions, appendices, Court of Appeals opinion, and commissioner’s memoranda are all provided to the court members electronically. This makes the distribution more efficient and less labor-intensive. It also means that the justices suddenly have even more material to review, sometimes significantly more than in the past. Equally important, the justices learn about a case differently — which, in turn, means that advocates who attempt to persuade those justices should reconsider how they draft their petitions and briefs.
While much has been written about increasing digitization in the judicial process — and the resultant efficiency and cost savings — far less attention has been paid to the impact that conveying information through electronic media has on judges. Simply stated, people perceive and learn differently when reading on electronic media than they do when reading on paper. That fact alone should motivate advocates to consider adapting their writing styles to adopt some of the conventions that have proven effective in other electronic media (e.g., Web pages) that are displayed on monitors, tablets, and smartphones.
Judges read on the Internet, too
It is a safe bet that habits users form while reading Web pages transfer (consciously or unconsciously) to their consumption of electronic briefs. Studies have shown that when users read information from screens, their eyes act differently than when they read on paper. Lawyers frequently comment that typos that eluded them on screen will jump out on paper. Similarly, legal arguments that may appear clear on paper may diminish — or perhaps be lost completely — for those who read on screens.
Writing for pixels
Over the past 20 years, Internet users have learned to cope with the avalanche of information they receive from a near-endless supply of Web page content: Users often scan only as much of the page as required to discern the author’s intended meaning. Studies have shown that when users read electronic media, they are less likely to read every word in detail (as on paper). Rather, people are more likely to scan electronic pages — relying upon the authors to assist comprehension by providing visual variety and structure. Frequently, those sought-after visual landmarks include headings, summaries, images, and typographic emphasis (e.g., bold, italics, color). (There is a reason this article has so many headings.)
Skimming and ‘F’ patterns
Usability expert Jakob Nielsen’s eye-tracking studies show that as users’ eyes navigate Web pages, they frequently move in an “F” pattern: reading the first line in full, the second line less fully, and then further diminishing as users move down the page. Jakob Nielsen, F-Shaped Pattern for Reading Web Content, NNGroup.com (Apr. 17, 2006), or see http://www.nngroup.com and search for “eyetracking”. And users’ eyes are drawn to elements that provide variety, such as images and summary headings. On screen, sentences should be short. And they must be clear. As such, how one writes on electronic media can have almost as much of an effect as what one writes. Marshall McLuhan’s decades-old observation rings true today: “The medium is the message.”
The takeaway — shorter, cleaner and bolder
What does this mean for the everyday lawyer? The growth of electronic media and its replacement of paper place an even higher premium on writing that is clear, concise and understandable. It also means that we will need to hone the appearance of our writing, because the eyes of the readers may not go where we expect them to go when we write on paper. A real challenge will be to ensure that your writing is equally persuasive in any medium: paper, monitors, tablets, and perhaps even smartphones. Judges now view briefs in multiple formats on screens of varying sizes. Not only do we have to be good lawyers, but it also won’t hurt to learn and incorporate the skills of good typographers, psychologists, and Web designers.
The medium may not be the entire message, but we need to keep the medium well up in the forefront of our thinking if we are going to be persuasive advocates in a digital world.
Eric Magnuson is a partner at Robins, Kaplan, Miller & Ciresi and served as chief justice of the Minnesota Supreme Court from 2008–2010. He can be reached at firstname.lastname@example.org. Damien Riehl is an associate at Robins, Kaplan, Miller and Ciresi, practicing in commercial litigation and appeals. He can be reached at email@example.com.
This article first appeared in the April 17, 2014 issue of Minnesota Lawyer.
Reprinted with permission of Minnesota Lawyer ©2014
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