Appellate Advocacy in the Digital Age
As more and more courts around the country embrace technology, lawyers must keep up or risk being left behind. Indeed, the American Bar Association has stated that professional responsibility requires lawyers to keep abreast of “the benefits and risks associated with relevant technology.” In the appellate context, digital briefs are becoming more prevalent. Many appellate judges are expressing a preference for reading briefs on devices such as iPads. In addition to being portable, “e-briefs” have other benefits, including searchability and linkability. Applying technology can also make your brief more visually appealing, while improving its navigability and ultimately giving the reader a better experience.
Because most appeals are won or lost on the briefs, submitting a concise, persuasive, memorable brief is the primary mission of appellate attorneys. Technology can enhance the look and feel of a brief and even small differences in readability can have an impact on the court. One federal appellate court actually states in its practitioner’s handbook, “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.”
How to make you brief “typographically superior” for a digital audience, you ask? There are many ways appellate attorneys can employ technology to improve their written work. The good news is that because you are probably already well aware of certain legal writing principles (such as the importance of using clear headings and subheadings to break up large chunks of text and avoiding footnotes which can distract the reader from your argument), adapting your written advocacy to a digital audience does not mean you will have to learn a whole new way of writing. Rather, since these strategies become even more important as we move to a digital world, understanding how technology can be applied to these and other writing conventions is the first step to becoming a tech-savvy appellate practitioner. The next step is checking the court rules for specific requirements and guidelines for digital briefs.
Filing of Electronic Briefs Encouraged by Washington Appellate Courts
Many courts are now accepting CD-ROM filings, which are referred to as “companion” or “corresponding” briefs. Washington’s Rules of Appellate Procedure provide that the filing of corresponding briefs on CD is “allowed and encouraged,” as long as certain requirements are met, including the filing of printed briefs. Notice of intent to file corresponding briefs also must be provided and the companion CD must be submitted within 60 days after the final reply brief is filed. While the corresponding brief must be identical in content to the paper brief, it may provide “hypertext links to the report of proceedings and clerks papers and to materials cited in the briefs such as cases, statutes, treatises, law review articles, and similar authorities.” All hyperlinked materials must be included on the disc as well. Other requirements include a statement concerning instructions for viewing the brief and verifying the absence of viruses.
The Washington Supreme Court approves of corresponding filings, expressing “sincere appreciation” for CD-ROM, hyperlinked documents and encouraging attorneys even in “routine appeals” to “seriously consider submitting the record and briefs” in digital format. When a court tells you that filing a digital brief is “encouraged,” that improving the “look” of your brief will “ensure that judges grasp and retain your points with less struggle,” and that you should “seize” the “valuable advantage” it gives you, you would be wise to listen.
Effective Brief Writing for a Digital Audience
Digital briefs must be easy to read and to use. Basic technology can enhance the readability and navigability of a e-brief. Here are just a few suggestions:
Use substantive headings and subheadings to provide signposts for the reader.
Employ other organizational signals such as bullet points or numbered lists.
Experiment with fonts, as long as court rules permit it (Washington courts allow Times New Roman, Courier, CG Times, Arial).
Use graphics to illustrate a point and break up monotony of text on the screen.
Applying any or all of these techniques will go a long way to making your digital brief “typographically superior.” You should also consider using key words and phrases in a way that accommodates computer searches. The judges and law clerks reading your brief may focus on a particular issue (and as you know it may not be the one that you believe the case hinges on) and want to use the “search” function to track the word or phrase (or contract provision, statutory reference, etc.) throughout the brief. With this in mind, you should refer to such key concepts the same way throughout the brief, rather than, for example, using synonyms in an attempt to make your brief sound more elegant.
Applying more advanced technology, such as inserting hyperlinks into the text of your brief, can also improve the reader’s experience. Washington courts allow “hypertext links to the report of proceedings and clerks papers and to materials cited in the briefs such as cases, statutes, treatises, law review articles, and similar authorities.” Allowing the reader to move easily between your brief and the material it relies on, without having to page through a voluminous paper record or pull cases or statutes from different places, can make a huge difference in how your arguments are received and contemplated by the court. Internal links, such as between the headings in the Table of Contents and those in the text, can also be useful. Keep external hyperlinks to a reasonable amount, however, because too many links can be disruptive to the reading process, and make your brief prone to skimming. You don’t want the reader to spend more time navigating than reading.
Technology in the legal space is constantly evolving. Attorneys must educate themselves on the latest capabilities and advancements that impact their practice. While the traditions of appellate brief writing will likely remain, courts are embracing technology that makes the process of reviewing and digesting appellate arguments more efficient. Producing user-friendly digital briefs is the way forward. While the local rules set minimum standards for documents submitted electronically, brief writers can and should take advantage of any available technology that can make their briefs more visually appealing, improve its navigability and the reader experience.
How I Can Help You
If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.
Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.
The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.