The idea of improvisation is one that many writers fall into, and I obviously improvise a great deal when I’m writing, but there’s always a structural framework that I’m working around, and that takes more time than the actual writing.
It is a portal, a gateway between one world and the next.
I. Introduction: A Change is Gonna Come
Written communication is a core lawyering skill: in many ways, to be a lawyer is to be a writer. We are all digital readers now because COVID-19 forced us to be. The legal profession, including local, state, and federal court systems, has been shifting from paper to digital, a trend that has accelerated since March 2020. Lawyers no longer have a choice about incorporating technology into their practice—they must do so for quality and efficiency and as a duty of professional responsibility. For example, ABA Model Rule 1.1, Comment 8 (and corresponding rules adopted by a majority of states) requires that lawyers understand the risks and benefits of technology as part of the duty of competence. ABA Formal Opinion 477R provides guidance about the lawyer’s duty to make reasonable efforts to secure confidential client information when using technology to communicate.
A 2012 survey found that 58% of federal court judges “use an iPad for their court work,” which included reading court documents as well as email; since at least 2010, some U.S. Supreme Court justices have been reading briefs on computer devices; and recently, all three judges on the Supreme Court in New Delhi, India used laptops in a remote paperless hearing. Various courts, such as the U.S. Court of Appeals for the Seventh Circuit, provide detailed information about the design of briefs, including briefs produced electronically, and courts are beginning to transition from mere e-filing of scanned documents to accepting or requiring electronic briefs with expanding digital functionality.
In today’s legal profession, some visual design and digital functionality can even be found in the work of the U.S. Supreme Court. Justice Sonia Sotomayor included photographs showing a high school coach’s prayer circle at the fifty-yard line of a football field in Kennedy v. Bremerton School District, Justice Stephen Breyer used visual design in his Opinion in June Medical Services v. Russo, and the Annual Report on the Judiciary by Chief Justice John Roberts is a digital document with hyperlinked citations. It appears that “judges are increasingly opining that the way lawyers have historically approached document design should not continue.”
When it comes to technology, there is no turning back for law schools and the legal profession. Technology continues to reshape law and society. In the legal profession, automation and algorithms have the capability to perform an increasing amount of routine lawyering tasks. Attorneys are accelerating the use of technology in their practices; a majority of attorneys use cloud services, although progress remains slower than expected. Law schools have also started to meet the challenge of preparing students for practice in a rapidly changing legal profession that is increasingly intertwined with technology. Understanding how to lawyer in the digital age is a best practice that promotes high quality legal work.
The digital age has far-reaching implications for law practice and how law schools organize their programs, teach students, and prepare the next generation of lawyers, including for public interest practice. Because written and oral communication are the threads that connect the multi-dimensional work of a lawyer, the relationship of communication to technology is particularly important.
Yet the fundamental paradigm for legal writing in law schools and in the legal profession remains a paper document. The basic structure of the legal memorandum and brief remains mostly unchanged since it developed in the typewriter age in the late nineteenth and early twentieth centuries. There have been some fundamental shifts in our approach to legal writing—for example, the plain language movement’s largely successful effort to replace traditional writing norms that relied excessively on legalese and unnecessary verbosity. A more contemporary approach to legal writing that is designed for the digital reader should be the norm, particularly as the COVID-19 pandemic has accelerated the need for skills suitable for lawyering in the digital age.
The fundamental concept of legal writing, and how it is taught, mentored, and supervised in law schools and in practice, should reflect the reality that “all legal reading is rapidly moving to on-screen legal reading.” All types of law-related professional writing will benefit from a digital writing approach, even writing that may have to be printed and read on paper, such as know-your-rights materials and written communications to clients who are detained or incarcerated.
This does not mean that paper is dead, nor that we should abandon time-honored best practices in writing or sacrifice depth in our analysis in order to cater to the distracted reader. It does mean that law school professors, practitioners, and judges who teach, supervise, and mentor legal writers should develop intentional approaches to writing with the digital reader in mind.
This critical reexamination of legal rhetoric and communication extends to the modalities and technologies through which legal writing is produced and consumed. This calls for a different paradigm, which I refer to as the writing for the digital reader framework. Digital writing does not replace the creative human writing process, complex narrative and analysis, or the role of old school technologies—for example, pen and paper! Similar to the difference between a paper map and digital map, writing for the digital reader adds dynamic dimensions that enhance communication between the writer and reader.
Regardless of whether the medium is paper or digital, the writing process remains unique and timeless: we brainstorm, create, think, outline, analyze, compose, revise, edit, and proofread in iterative loops. Legal writers must find their professional voice, communicate in a variety of writing genres, and present factual narrative and legal analysis effectively to the intended audience. Law students and the new generations of attorneys are increasingly diverse in their backgrounds, circumstances, and academic literacy experiences. This impacts how they adapt initially to the culture of law school and then to the profession, including legal writing norms. This process may depend on the extent to which a law school or law office views adaptation as a mutual endeavor or the unilateral responsibility of students and new attorneys.
Law is steeped in tradition. At its aspirational best, it builds upon the past and opens up new possibilities; however, custom and precedent often reinforce the status quo and stifle change. The COVID-19 pandemic continues to illuminate and deepen the pre-existing access-to-justice crisis, and disproportionately impacts poor, Black and Brown communities, people with disabilities, and older adults. In addition, the digital revolution has brought society to an inflection point that extends to how law and legal rhetoric are produced and consumed. This revolution has great potential for more fully democratizing the law by broadening access to legal information and courts (both in person and remotely). For example, guided interviews, do-it-yourself (or with a trusted intermediary in the community) legal forms, expert systems, and legal information have proliferated online in a determined effort to fill at least part of the extreme gap in access to legal services, which disproportionately impacts marginalized communities. Nonetheless, the digital divide remains a major problem due to the persistent inequality of access to computer devices and broadband internet, which largely replicates more widespread patterns of inequality based on race, class, age, and disability.
The benefits of technology also come with serious risks, as automated decision-making systems replicate and deepen systemic racism, inequality, and discrimination. Government agencies (including law enforcement) and private actors use proprietary algorithms that violate privacy rights, facial recognition software to track people, and other surveillance tools.
All of this is happening at a moment in history when we are experiencing and confronting the harmful effects of institutional racism in society, which includes the historical and contemporary role of the law and legal rhetoric. The legal system in the United States, and the writing conventions it has produced, are deeply imbued with white supremacy, hierarchy, racism, and misogyny. While our foundational legal document, the U.S. Constitution, provides a blueprint for a more perfect Union (and hopefully can continue to breathe as a living document), it also reflects the limitations of its principal authors: white men who owned, sold, tortured, and killed Black people, participated in or benefited from the genocide of the Indigenous Americans and Native Hawaiians, and did not even bother to mention women. The need for truth and reconciliation in the United States has been demonstrated by the Movement For Black Lives, the police lynching of George Floyd and too many other Black people, the January 6, 2021 violent insurrection at the U.S. Capitol, and ongoing state legislative attacks on voting rights.
As part of this broader reckoning, the legal profession needs to re-examine lawyering traditions and practices, including legal writing, in order to promote access and justice. Unless we actively engage with more contemporary approaches to legal writing, include using plain language, anti-racist discourse, and critical modes of analysis, we will still be “writing at the master’s table.”
The writing for the digital reader framework addresses the need to change the normative concept of legal writing from a traditional paper-based model to a contemporary digital approach. Section II of this article discusses how the reading and writing functions of our brain interact differently with computer screens, which creates the need for a different approach to legal writing in order to engage the reader’s attention and facilitate comprehension. Section III explains that lawyering in the digital age is an essential framework for law schools and the legal profession because technology has transformed the contemporary practice of law. Section IV describes why legal writing is digital writing and how effective writing strategies for the digital reader also help the paper reader. Section V demonstrates how the writing for the digital reader framework applies to core structures of legal writing, using selected parts of a brief to compare contemporary and traditional approaches. Section VI uses a judicial order involving qualified immunity to illustrate how the writing for the digital reader framework should be part of the essential foundational criteria for analyzing legal writing.
II. Our brain on screen: Implications for legal writing
In the digital age, we are challenged by massive information overload and multiple distractions. This heightens the need to understand how screen habits affect the way in which we process information and maintain, develop, or lose cognitive focus. Reading on a computer screen (including a laptop, tablet, or smart phone) is associated with distraction, lack of sustained attention, and diminished comprehension. Researchers and educators fear that deep learning and meaningful comprehension are threatened as digital readers:
Scan and skim text in “the shallows,” which refers to a superficial way of reading that fails to delve deeply into the meaning of the text, and
Attempt to multitask in a futile effort to comprehend and pay attention while checking messages, reading emails, browsing social media, and clicking on hyperlinks.
To meet these challenges, digital readers need to cultivate what neuroscientist Maryanne Wolf, in her research on the reading brain, describes as cognitive patience, with the ultimate goal being for people of all ages to develop a biliterate brain that can switch effortlessly between paper and digital modes of reading.
Regardless of the particular medium, legal readers can learn how to develop and maintain habits of mind and strategies to compensate for diminished attention and manage information overload. Metacognition—awareness of one’s own learning process—is an essential skill that helps (re)balance and self-regulate learning strategies and improve the ability to engage in deep reading and learning, even while using computer devices.
The interaction between the human brain and the computer screen helps us understand the cognitive basis for digital writing. The human brain is the most efficient, complex, and wondrous information processing system, notwithstanding advances in artificial intelligence. Cognitive science illuminates the sharp impact of digital technology on how our ancient brain processes information: after all, it took thousands of years for our brains to develop the capacity to read, and the onslaught of digital technology has occurred in a remarkably short period of time, literally a blink of an eye. Information overload and the distractions of the digital age heighten the need to understand how we process information, maintain, develop, or impair cognitive focus, and manage our screen habits.
Most law students and a growing number of attorneys are digital residents who have inhabited a world of computers, smartphones, and social media for their entire lives. Many use social media in savvy, innovative, and socially conscious ways, for example, in organizing social justice movements and using TikTok to disrupt a politician’s rally. As noted by Professors Ellie Margolis and Kristen Murray in their 2016 article, Using Information Literacy to Prepare Practice-Ready Graduates,  these new generations of law students and attorneys have “grown up composing text almost exclusively on screens, [and] have a very different experience [with the reading and] writing process than lawyers who began practicing law in the twentieth century.”
Regardless of a person’s age, their reading, educational, and literacy experiences play an essential role in developing critical thinking. The physical act of reading stimulates a symphony of neurological responses that include thought, feeling, prediction, perception, and empathy. The plasticity of our brain makes it responsive to and shaped by the interaction with computer screens. We used to imagine how computers might become more like humans, but now we may also have to ask how humans will become more like computers. As Marshall McLuhan said prophetically many years ago, “the medium is the message.”
Although the dangers for younger and older generations are different, all are vulnerable. Younger people who grew up with computer screens may not have developed the necessary synergy of cognitive and motor skills that best promote reading comprehension and deep learning. Older adults who are digital migrants (and may have trouble adapting to reading and writing on the digital screen) may also find themselves falling into distracted reading patterns in our world of information overload. For younger generations of law students and attorneys, computer devices generally, and smartphones in particular, are essential tools that open up access to knowledge, education, and economic opportunities. Perhaps to balance their immersion in technology, some research indicates that, at least in the United States, younger people prefer to read on printed paper for a variety of reasons, including fewer distractions, the benefits of the tactile experience, and relief from the harmful effects of excessive screen reading.
The writing for the digital reader framework responds to the digital reading problems experienced by both younger and older generations in the legal profession. It recognizes that, regardless of one’s age and reading experiences (and subject to the digital divide), most of us are juggling multiple devices, media, and technologies for reading and writing: smartphones, tablets, computers, papers, and books. This framework helps to solve these attention and comprehension challenges with a practical approach to legal writing that uses visual design, emphasizes contemporary best practices in writing, and leverages digital functionality.
For better or worse, we live, learn, teach, supervise, and practice law in a digital age. We cannot turn back the clock, just as Socrates could not prevent written communication from taking its place alongside oral communication, which he thought would be the end of the ability to remember information.
III. Lawyering in the digital age: Information is the connective thread
Because legal professionals now operate in the digital age, the ABA Model Rules of Professional Conduct include the duty of technological competence: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” This means a lawyer has to make reasonable, context-specific decisions about how to maintain client confidentiality and protect the attorney-client privilege in storing, managing, and sharing information. Attorneys need to manage privacy and security, including levels of encryption, such as when communicating with clients and colleagues by text, email, voice, video, and choosing digital case management systems.
The ABA Model Rules of Professional Conduct (and corresponding state rules) generally represent a minimum “floor” of technological competence along the continuum from digital literacy (knowing what to do) to digital fluency (knowing how to do it). This includes the following categories of actions and knowledge, from fundamental to more complex:
The professional duty of technological competence exemplifies how the legal profession is being transformed by the digital revolution. The writing for the digital reader framework helps prepare law students and attorneys for contemporary practice, or in the words of Professor Conrad Johnson, Lawyering in the Digital Age. Professor Johnson emphasizes that the shift to digital technology “transforms the way we practice traditional lawyering skills and requires us to teach the new skills of contemporary practice.” The writing for the digital reader framework is an example of a contemporary approach to a traditional lawyering skill.
Professor Johnson, in his practice with law students in the Lawyering in the Digital Age Clinic, has developed a theory of contemporary law practice that centers technology as a means to improve the quality and efficiency of legal services, disseminate legal information to individuals and communities, and promote social justice. “Ultimately, we want students to grapple with the extent to which essential legal services are not available and the harm that ensues. With this foundation, they can better grasp . . . how technology might create efficiencies and solutions that are immediately useful.”
As a starting point, Professor Johnson posits information as the connective thread in lawyering in the digital age. “Without an understanding of how technology operates and the myriad ways it can be used to express our full lawyering potential, we are missing a major piece of the practice puzzle.” In the digital age, lawyers are knowledge workers who practice within a gathering, managing, and presenting framework, which updates and expands upon traditional understandings of lawyering skills practice:
The gather-manage-present framework uses technology to expand the lawyer’s toolbox and open up the possibility for deeper and more effective human interaction with clients. More broadly, it is critical to understand how technology is changing what it means to be a lawyer, creating opportunities to collaborate and forge partnerships across professional disciplines and with communities, and facilitating access to high quality legal services and resources.
In many ways, the path to lawyering in the digital age, including the gather-manage-present paradigm, begins with the essential lawyering skill of writing. Even before COVID-19, the need to be prepared for lawyering in the digital age was no longer an option, but a necessity. Templates and forms are used to create digital living documents that leverage the power of cloud computing, develop with each step of a case, and form a developmental foundation for factual and legal analysis.
IV. Legal writing is: Writing for the digital reader
If lawyering has entered the digital age, and if the paradigm of legal writing is shifting from paper to digital, what are the implications for legal writing in the profession and how it is taught in law schools and supervised in practice? As discussed below, scholarship on visual design and the impact of digital technology on legal writing provides a theoretical and practical basis for shifting our notion of a legal document from paper to digital. The writing for the digital reader framework incorporates and builds upon the core components, structures, and techniques that are effective for the paper reader.
For example, Professor Ruth Anne Robbins, in her seminal 2004 article Painting with Print and her 2015 work with Professor Steve Johansen Art-iculating the Analysis, made important connections among visual design techniques, legal writing, and lawyering strategy. Professor Kirsten Davis, in her 2014 article The Reports of My Death Are Greatly Exaggerated, asserted that “all legal reading is rapidly moving to on-screen legal reading.” Professor Ellie Margolis, in her 2015 article Is the Medium the Message?, observed that “[t]urning the traditional, linear, text-based brief into a multidimensional e-document is a key example of how the medium changes the message and suggests that it is time to rethink that classic legal document.” Writing for the digital reader complements what Professor Mark Yates referred to as the essential, deliberative “linear, text-based literacy.”
Although legal writers need to be able to work with both paper and computers, and a hybrid approach utilizing both may be optimal, the computer is the predominant technology for writing and reading. Nonetheless, using pen and paper has tangible benefits in the iterative writing process and helps reduce screen time. The physical act of writing also develops cognitive mapping and facilitates close reading and editing.
Any form of legal writing, broadly defined, can be transformed from paper (two dimensional) to digital (multi-dimensional) with modest changes in design, structure, and functionality. These changes can draw on older techniques, including typography, that can help alleviate some of the problems associated with digital reading. Typography determines the readability of a writing in the choices made about the visual appearance of text. These choices may involve the distance between lines of text, letter spacing, alignment, hierarchical relationships, and typeface. Technology has extended the boundaries and flexibility of typography, which allows the digital writer to work with a wider array of tools to communicate effectively to the digital reader.
Digital writing can be adapted by legal writers because particular digital elements or tools can be sprinkled and infused within any legal writing, regardless of context. Legal writers can use visual design and digital functionality to help construct their legal analysis in outlines and drafts (for example, by using organizational visuals to deconstruct complex rules or facts) and present their analysis in the final writing, in ways that serve best writing practices. The writer can use whatever digital elements are appropriate, depending on the context and subject to court rules for litigation documents.
The writing for the digital reader framework emphasizes and synthesizes the following elements:
Visual design elements to organize and present information in an accessible format:
Best practices in writing: 
Be explicit, direct, and get to the point.
Use headings and subheadings.
Present narrative and analysis that informs and persuades with topic sentences, concise paragraph structure, and active voice.
Use hyperlinks and bookmarks for instant access to external authorities and resources, and “back and forth” functionality within the document.
Use free alternatives to the main “paywall” research databases, Lexis and Westlaw (each of which contract with ICE and local law enforcement), such as Casetext, Cornell Legal Information Institute, Findlaw, Google Scholar, Harvard Caselaw Access Project, Justia, Law Library of Congress, and Leagle.
The writing for the digital reader framework meets legal writers where they are, including law students and new(er) attorneys who are mostly digital residents. It facilitates adaptive transfer by encouraging legal writers to draw on their formative learning experiences (before, during, and after law school), including oral and written communication.
A. Adaptive transfer: A process that helps integrate the writing for the digital reader framework
The concept of adaptive transfer reveals how writers from different backgrounds, cultures, and literacy experiences develop their writing in unfamiliar or different contexts and formats. The adaptive transfer process helps us better understand how law students learn the language of the law and the conventions of legal writing. Law students and lawyers can benefit from legal writing teaching and supervision that explicitly welcomes diversity as a strength and encourages everybody’s contributions to a learning community.
Adaptive transfer applies to the process of professional development essential for law students and practitioners: to acquire the learning tools to transfer skills, knowledge, and values within and across subject and practice contexts. Adaptive transfer names the nuanced strategies and approaches novice writers utilize to decode the expectations of professors and supervisors in order to master unfamiliar writing genres. Adaptive transfer recognizes that writers reshape prior knowledge and experiences to learn a new genre or form of writing.
Adaptive transfer is useful for writers regardless of their generation in that it is dynamic and transformative in reusing and reshaping past experiences in new contexts. For younger generations of legal writers, the capacity for adaptive transfer is a bridge from their lived experiences in the digital age to the unfamiliar landscape and structures of legal writing and analysis. New generations of lawyers are no strangers to writing. Perhaps surprisingly, today’s college students do more writing, including longer academic essays, than previous generations. For more experienced attorneys, the adaptive transfer process may also serve as a bridge from established habits and familiarity with legal knowledge and structures, forged in a pre- or nascent digital age, to a more contemporary approach to lawyering in the digital age. The ability to reshape writing experiences and habits in new contexts allows law students and lawyers to write more effectively for the digital reader.
B. Best of both worlds: To write well for the digital reader is to write well for the paper reader
Learning how to write for the digital reader is necessary for contemporary law practice. Some may ask, what is the point of approaching legal writing as digital writing if a court or government agency or supervisor still requires either paper or limited-functionality portable document format (PDF) documents? Although documents that are prepared for filing in a real case have to conform to the rules of courts and administrative agencies (and therefore may not need to or be able to include full digital functionality), the vast majority of writing by law students and lawyers is done outside of litigation and can take full advantage of digital functionality.
Moreover, even if the final written product does not include digital elements, learning how to write intentionally for the digital reader is valuable in a shadow role because it helps writers map out the design of their factual and legal analysis. The writing for the digital reader framework represents a best-of-both-worlds approach: to write well for a digital reader is to write well for the paper reader, but not necessarily vice versa. The combination of enhanced visual design, amplified best practices in writing, and digital functionality makes it easier to adapt digital writing for a paper reader than to modify a paper document for a digital reader. Even if a writing will be filed in a particular court, either as paper or as a flattened PDF, writing for the digital reader incorporates time-honored visual design and best practices in writing that are essential for paper documents.
The following section illustrates how the writing for the digital reader framework applies to the core components of the fundamental legal analytical format used in most legal writing.
V. Comparative snapshot: How the writing for the digital reader framework applies to core components of legal writing
The writing for the digital reader framework—visual design, best practices in writing, and digital functionality—can be applied to virtually any writing activity in law school and in practice. The focus is on the intersection between the traditional and digital formats as the pivot point to start writing intentionally for the digital reader.
Attorneys, judges, and law students write in many different contexts, genres, and voices. For all but the shortest and most informal legal writing, the classic legal rhetorical structure forms the underlying analytical foundation for objective and advocacy writing (in addition to a fact statement, summary, or narrative). The components of this familiar analytical structure form the essential framework for most legal writing:
Issue Statement/Conclusion/Question Presented
Rule statements/Rule explanations
Application of facts to relevant law (or law to fact)
Understanding this organizational structure in law school, transferring it to different practice contexts, and working towards mastery as an attorney, are developmental steps along the path to becoming an excellent legal writer. While there are different approaches and variations, this underlying framework supports legal analysis, like the skeletal framework supports the human body.
The choices legal writers make in how to present their analysis within this structure—assuming reasonably strong content—may determine whether writers meet their goals for communicating to the intended audience. Clarity of substantive analysis and form of presentation are mutually reinforcing and intertwined; strong legal analysis may not come across in writing that is disorganized and hard to follow. Similarly, an effective presentation may not overcome substantive analysis that is incomplete or confusing.
An office memorandum informs the reader about facts gathered, relevant law, how the law applies to a particular set of facts, and (depending on the stage of development) assesses the merits of the case. Considering that most law is practiced outside of the courtroom, the office memorandum is a core tool in legal writing; it is part of a lawyer’s process for developing analysis and often forms the basis for decisions about representing a client or legal strategy.
Advocacy writing (for example, a brief) largely replicates the structure of the office memorandum but is focused on persuading not informing, arguing rather than assessing, and showing instead of predicting. Advocacy writing cuts across a broad continuum of practice contexts; in addition to the more traditional long form brief, it includes shorter, less formal documents: an email letter to an opposing attorney, a letter brief to an administrative agency or decision maker, or an affidavit brief in family or housing court.
Each broad genre, whether predictive or advocacy focused, should include attention to the components of the writing for the digital reader framework:
Best practices in writing
The attention to visual design helps accomplish the traditional goals of legal writing: clear analysis that is expressed in an easy-to-follow structure that integrates form and substance in ways that are attentive to the context and reader. Focusing on visual design helps sharpen factual and legal analysis as the legal writer develops the analysis and presents it in a final written work product. Although the transition to screen reading may have prompted greater attention to visual elements that detract from a writing (e.g., ALL CAPS), these practices may have been suboptimal even in paper documents. In contrast, some traditional concepts of document design can help a digital reader better comprehend a document on the screen. For example, avoiding underlining (except for hyperlinks) in favor of using bold highlights text and avoids confusion with hyperlinks. Eliminating ALL CAPS in favor of bold or italics, or using sentence or title case in headings, reduces eye strain and cognitive fatigue.
Digital functionality, for example, hyperlinks to external authorities and hyperlinks to bookmarks within the document, enhances the reader’s ability to navigate the document and access external resources. Enhanced internal functionality that enables the reader to navigate the document with hyperlinks and bookmarks helps the reader locate and map the structural sequence of the document. This compensates for the diminished sense of place that digital readers can experience.
Legal writers can also adapt and introduce new digital elements as they construct and develop their analysis. For example, physical locations and events related to the subject of analysis create opportunities to present facts and legal arguments with visual elements such as maps, photographs, and diagrams. The writer is in a better position to make decisions as to whether these visual elements should be integrated into the final work product.
A more contemporary approach to legal writing may create tension with audience expectations. When it comes to certain changes, for example Arabic versus Roman numerals, many judges or lawyers may be resistant. Moreover, until lawyers get used to new systems, an Arabic number could be read or scanned as a sub-argument, and its use as a main point could confuse the reader. For those who are used to certain structures, understanding a document with new features will take time, even if these new structures are better suited to digital reading. If judges expect to see a certain kind of formatting, even if they are reading a brief on a tablet, a new way of formatting may subvert those expectations and make the brief less effective. Despite these potential problems, the benefits of writing for the digital reader outweigh the harms. The less familiar elements are not drastically different than traditional approaches, the overall substantive and esthetic effectiveness of a well-designed document will improve the reader’s experience, and change inevitably encounters resistance. And as previously noted, when it comes to lawyering in the digital age, there is no going back.
The following is a comparative snapshot of a few selected components of an advocacy brief—traditional (paper) in relation to contemporary (digital). This comparison necessarily focuses primarily on format and structure, rather than content, and is designed to provide practical examples as a pathway into the writing for the digital reader framework.
Title of sections:
- Research shows that ALL CAPS YELLS at the reader and diminishes context memory.
- Also, underlining is not necessary when words are in bold and should generally be avoided unless the underlined text is a hyperlink.
I. THE GUARDIAN SHOULD BE DISCHARGED.
1. The guardian should be discharged because Petitioner is withdrawing her consent, there was no finding that Petitioner is incapacitated as she is aware of her limitations and how they impact her, and there is no clear and convincing evidence that guardianship is necessary.
- Again, ALL CAPS YELLS at the reader and reduces contextual memory.
- Research shows that sentence case is easier to read, particularly on a screen, than ALL CAPS, Small Caps, or Capital Letters At The Beginning Of Each Word (i.e., title case).
- Roman numerals are antiquated, and modern usage encourages Arabic numbering.
- Substantively, the heading should be a complete assertion that explains “why” to the reader, rather than a conclusory statement.
A. WHEN A PERSON IN NEED OF A GUARDIAN MOVES TO TERMINATE A GUARDIANSHIP, THE BURDEN OF PROOF SHALL BE ON THE PARTY OBJECTING TO THE RELIEF PURSUANT TO MHL § 81.36(d).
b. When a person in need of a guardian moves to terminate a guardianship, the burden of proof shall be on the party objecting the relief pursuant to MHL § 81.36(d).
- Instead of the more traditional Roman Numerals/Letters (A.), the sub-point heading uses Arabic numbering (1.1), which lets the reader know the location of the sub-point heading in the sections of the text.
- Locating sections of a document within the whole is particularly important on the screen, where it is easier to lose a sense of place in the text than when reading a paper document that provides a more tangible feel of the document.
The author can hyperlink the citation to the statute using Findlaw, a publicly available database that provides digital functionality, gives the reader instant access, and avoids the problem of a paywall. (Of course, given the ubiquity of Westlaw and Lexis, the intended audience may prefer or require that citations be linked to a particular database, regardless of the existence of a paywall).
In order to appoint a guardian, the Court must deem guardianship to be necessary to provide for the personal needs of the alleged incapacitated person and make findings on the record by clear and convincing evidence of the person’s incapacity. A determination of incapacity must be based upon clear and convincing evidence that a person is likely to suffer harm, and she is unable to provide for her personal needs and/or property management, and she cannot adequately understand and appreciate the nature and consequences of such inability. MHL § 81.02(b).
In order to appoint a guardian, the Court must:
- Deem guardianship to be necessary to provide for the personal needs of the alleged incapacitated person; and
- Make findings on the record by clear and convincing evidence of the person’s incapacity.
MHL § 81.02(b).
A determination of incapacity must be based upon clear and convincing evidence that:
- A person is likely to suffer harm; and
- She is unable to provide for her personal needs and/or property management; and
- She cannot adequately understand and appreciate the nature and consequences of such inability.
MHL § 81.02(b).
- In this rule statement that includes five different elements, the traditional paragraph blends them together.
- The contemporary paragraph incorporates best practices in writing by providing the reader with a more accessible organization or navigation visual that clearly identifies the various elements and emphasizes that all are required for the relief requested.
- The citation to the statute should be hyperlinked to a publicly available database.
When evaluating capacity in order to appoint guardianship without one’s consent, the Court’s primary consideration is one’s functional level and functional limitation. MHL. § 81.02(c). A functional analysis includes how one handles activities of daily living such as cooking, toileting, money management, and banking. Id. § 81.03(h). In Matter of John Doe, 181 Misc.2d 787, 792 (Sup. Ct. Nassau County1999), the court found that alcohol and drug abuse alone are insufficient to establish incapacitation; “although an abuser of drugs and/or alcohol may at some point develop such limitations and disability (particularly where such abuse exacerbates other problems or conditions), the mere use or even abuse by itself does not generally demonstrate the necessary functional detriment.” Mental health issues or mental illness alone are insufficient for a finding of incapacity without clear and convincing evidence that such illness substantially impairs the ability of the person to function and tend to their own affairs. See Matter of Fritz G., 164 A.D.3d 503, 504 (2d Dep’t 2018) (where evidence presented at Article 81 hearing consisted only of testimony regarding the AIP’s schizophrenia was found to be insufficient to establish incapacitation under MHL 81.02(b)). Lastly, in Matter of David C., 294 A.D.2d 433, 434 (2d Dep’t 2002), the court stated that: “A precarious housing situation and meager financial means did not, without more, constitute proof of incapacity such that a guardian was warranted.”
- Citations are not hyperlinked; they are located at beginning or in middle of sentences, which clutter case descriptions that are either too long or too short.
- The paragraph is too long, making it difficult for the writer to effectively communicate their key assertions.
When evaluating capacity in order to appoint guardianship without one’s consent, the Court’s primary consideration is one’s functional level and functional limitation. MHL § 81.02(c). A functional analysis includes how one handles activities of daily living such as cooking, toileting, money management, and banking. MHL § 81.03(h).
In addition, the following principles apply to the functional analysis:
- Alcohol and drug abuse alone are insufficient to establish incapacitation; “although an abuser of drugs and/or alcohol may at some point develop such limitations and disability (particularly where such abuse exacerbates other problems or conditions), the mere use or even abuse by itself does not generally demonstrate the necessary functional detriment.” Matter of John Doe, 181 Misc. 2d 787, 792 (Sup. Ct. Nassau County 1999).
- Mental health issues or mental illness alone is insufficient for a finding of incapacity without clear and convincing evidence that such illness substantially impairs the ability of the person to function and tend to their own affairs. See Matter of Fritz G., 164 A.D.3d 503, 504 (2d Dep’t 2018) (evidence presented at Article 81 hearing consisting only of testimony regarding the alleged incapacitated person’s schizophrenia was found to be insufficient to establish incapacitation under MHL § 81.02(b)).
- “A precarious housing situation and meager financial means did not, without more, constitute proof of incapacity such that a guardian was warranted.” Matter of David C., 294 A.D.2d 433, 434 (2d Dep’t 2002).
- Because this particular rule explanation—supporting a key element with cases—has a number of items (cases) that can be presented as a list, the contemporary version using the bullet visual design technique breaks out each case in a more visually accessible way.
- It also avoids the lengthy paragraph in the traditional section. Of course, the writer could just use a more concise paragraph or series of paragraphs as needed, although the visual framing and grouping may help the reader.
- The citations to cases can provide digital functionality hyperlinking to a publicly available database (New York Official Reports), which gives the reader instant access to the case, and as noted, avoids the problem of a paywall that requires an account, username, and password.
- Citations follow case description sentences (rather than beginning a sentence or inserted in the middle of a sentence).
- Case description provides sufficient detail to support the thesis sentence, which follows best practices in legal writing. When the discussion of cases or other relevant authority requires more detail, these principles can be easily adapted and applied to the particular structure and presentation that most effectively expresses the substantive content and analysis.
The writing for the digital reader framework not only benefits the reader; it also benefits the writer. In law school and in practice, a developmental approach that introduces the writing for the digital reader will help the legal writer focus on substantive analysis, synthesis, and the demands of a supervisor’s expectations (and a deadline). For example, fundamental visual design techniques may be sprinkled into writing incrementally. Using strong thesis sentences and concise paragraphs are best practices in writing and serve as signposts and anchors for a document’s organizational structure. Similarly, hyperlinks can be introduced by using them only for the initial citation to each case or website.
The elements of the writing for the digital reader framework infuse and enhance traditional writing in paper documents with a contemporary approach to writing that reflects the reality that most legal documents are ultimately composed and read on a computer. Newer generations of students and attorneys may recognize and connect with a more contemporary approach that utilizes visual design, best practices in writing, and digital functionality. This approach helps amplify the rhetorical power of legal writing by strategically using visual design techniques and creative expression to crystalize important points and grab the reader’s attention. It offers an additional lens through which legal writing can be understood and assessed.
VI. Analyze this: The framework synthesizes essential criteria to assess the effectiveness of legal writing
The elements of the writing for the digital reader framework—visual design, best practices in writing, and digital functionality—are each important aspects of writing, and together they form essential criteria that provide an additional lens for analyzing legal writing. Because the structure and design of a document influence its substance, legal writers can incorporate the elements of the framework to communicate more effectively to the digital reader.
Regardless of the context, legal writers need to synthesize format and substance to accomplish their goals for particular audiences. Professor Andrea McArdle, in her article on teaching how to negotiate professional and personal voice in legal writing, analyzes examples of legal writing through various criteria to illuminate how those who teach law students or mentor and supervise lawyers can support the diverse ways legal writers express themselves in particular legal writing contexts. Professor McArdle highlights the process by which legal writers become fluent in their professional voice to help law professors and attorneys understand how to best teach and mentor legal writers.
How legal writers structure, design, and present their analysis influences the strength of legal analysis and enhances the effectiveness of legal writing. Assuming reasonably strong content, a document’s structure and design are key elements of the writer’s creative and analytical process and determine whether the writer’s intention meets the reader’s attention. Because the structure and design of a writing can help or hinder the quality of the communication to the reader, analyzing these elements helps to assess a writing’s overall effectiveness.
Visual design features can make judicial opinions more powerful and effective. The writing for the digital reader framework provides a contemporary approach through which one can analyze judicial writing. This adds to existing analyses of rhetorical features of judicial opinions from various perspectives, including Judge Posner’s categories of a traditional, formalistic pure approach and a more expressive, conversational “impure” style. Professor McArdle points out that in the modern era, the individuality of judicial opinions (for example, those of Justice William Douglas) has yielded to a more generic law review style, perhaps due to the increased role of law clerks. Professor McArdle notes that Justice Stephen Breyer’s writing exemplifies the kind to which all legal writers should aspire: “[I]ts cadence, clarity, and directness all contribute to the intellectual force of his conclusions, while underlining a desire to be read⸺to reach, and to persuade, a wide audience.” Professor McArdle focuses on rhetorical choices involving the textual language of judicial opinions.
Moreover, assessing a judicial opinion through the writing for the digital reader framework expands the lens through which we can analyze judicial opinions to uncover the source of their strengths and limitations. For example, the power of visual design as a rhetorical device in a judicial opinion is exemplified by the Order of Federal District Court Judge Carlton W. Reeves in Jamison v. McClendon. Clarence Jamison, a Black man driving through Pelahatchie, Mississippi on his way home from a vacation, brought a claim under § 1983 for violation of his civil rights by a police officer who pulled him over for an alleged traffic violation—a stop that lasted hours. In response to Mr. Jamison’s Complaint, the police officer moved for summary judgment based on qualified immunity.
The opening lines of the Order serve as a bookend to Judge Reeves’s reluctant conclusion that U.S. Supreme Court precedent required that the police officer’s motion for summary judgment be granted. Judge Reeves uses visual design, coupled with a rhetorical device emphasizing what Mr. Jamison was not doing and what he did not look like. Together, they grab the reader’s attention with vivid imagery that foreshadows the grave tragedy of what happened to Mr. Jamison and of the Order’s ultimate conclusion:
Clarence Jamison wasn’t jaywalking.
He wasn’t outside playing with a toy gun.
He didn’t look like a “suspicious person.”
He wasn’t suspected of “selling loose, untaxed cigarettes.”
He wasn’t suspected of passing a counterfeit $20 bill.
He didn’t look like anyone suspected of a crime.
He wasn’t mentally ill and in need of help.
He wasn’t assisting an autistic patient who had wandered away from a group home.
He wasn’t walking home from an after-school job.
He wasn’t walking back from a restaurant.
He wasn’t hanging out on a college campus.
He wasn’t standing outside of his apartment.
He wasn’t inside his apartment eating ice cream.
He wasn’t sleeping in his bed.
He wasn’t sleeping in his car.
He didn’t make an “improper lane change.”
He didn’t have a broken tail light.
He wasn’t driving over the speed limit.
He wasn’t driving under the speed limit.
No, Clarence Jamison was a Black man driving a Mercedes convertible.
The use of nineteen single-sentence paragraphs to begin the Order signals to the reader that the facts of this case demand immediate attention before, not after, a more customary introduction that introduces the parties, the procedural context, and the issue to be resolved. These individual sentences each tell a concise, compelling, self-contained story about Mr. Jamison and some of the other Black human beings who have been stopped, harassed, and/or murdered by police; each person is named and contextualized by the individual, sequential footnotes. This rhetorical and visual design choice by Judge Reeves both exalts each individual and unites them together as a collective whole that stands as an indictment of white supremacy and state-sponsored, racist police violence against Black people.
The powerful, thorough, and educational text that follows recounts the historical context of 42 U.S.C. § 1983 from the Black Codes, through Reconstruction and its Whitelash, up to the present time of Black Lives Matter. It also lays bare how judicial opinions, led by the U.S. Supreme Court, have covered up the essential purpose of the civil rights laws in layers of conditions, limitations, qualifications, and justifications. In the words of Judge Reeves, these judge-made rules have effectively made “qualified” immunity operate as “absolute” immunity in practice. The rhetorical and visual design choices made by Judge Reeves helped make the judge’s larger point that the qualified immunity doctrine has protected the government against the people.
In addition to visual design, Judge Reeves also uses headings and subheadings, a best practice in writing. Although most of the headings are limited to announcing topics (“Factual and Procedural Background” “Legal Standard” “Historical Context”), a few sub-headings are slightly more fully developed, creative, and expressive (Section 1983: A New Hope and Qualified Immunity: The Empire Strikes Back). These more expressive headings are effective because they focus the reader’s attention with vivid imagery.
To enhance the digital functionality of the Order, specifically the beginning recitation described above, Judge Reeves could have included hyperlinks in the footnotes to the single sentences. While two of the nineteen footnotes do include a URL, none is hyperlinked; greater digital functionality with hyperlinks in the footnotes would have enabled the reader to read each of those first nineteen sentences in the Order, see the person’s name and context in the corresponding footnote, and have the option to click on the hyperlink to read further. This would have served the purpose of this part of the Order by providing instant access to more in-depth information.
The legal profession has been evolving along with digital technology, which has impacted every facet of the profession, including law schools. The COVID-19 pandemic accelerated this process and made it essential for the legal profession to embrace lawyering in the digital age. Neuroscience research helps us to better understand how our brains are impacted by computer devices, including changes in how we read and write. This has enormous implications for the legal profession, including law schools, courts, and practitioners, all of whom are reading and writing on computer devices more than ever before.
With greater awareness of how computer screens affect reading and writing, lawyers can write for the digital reader. The elements of the writing for the digital reader framework—visual design, best practices in writing, and digital functionality—can be applied to the full range of legal writing, which will result in more effective written communication. In order to meet the challenges of lawyering in the digital age, the legal profession should incorporate this framework as a foundational part of legal writing.
Interview by Katherine Rowland with James McBride, Telling a Whopper, Guernica (Oct. 1, 2013), https://www.guernicamag.com/telling-a-whopper [https://perma.cc/AS6H-RJ7W]. Mr. McBride is an accomplished musician and author. See https://www.jamesmcbride.com [https://perma.cc/HEL7-ASEN].
Arundhati Roy, The Pandemic is a Portal, Fin. Times (Apr. 3, 2020), https://www.ft.com/content/10d8f5e8-74eb-11ea-95fe-fcd274e920ca [https://perma.cc/4ULB-933V]. That next world may depend on how much we invest in humans and subject technology to rigorous oversight. See, e.g., Naomi Klein, Screen New Deal: Under Cover of Mass Death, Andrew Cuomo Calls in the Billionaires to Build a High-Tech Dystopia, Intercept (May 8, 2020), https://theintercept.com/2020/05/08/andrew-cuomo-eric-schmidt-coronavirus-tech-shock-doctrine/ [https://perma.cc/C5GP-34P9].
See ABA, Standards & Rules of Proc. for Approval of L. Schs. 2022-2023 ch. 3 (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standards/2022-2023/22-23-standard-ch3.pdf [https://perma.cc/9RZR-NEW5].
Written communication in a legal context is included in the American Bar Association requirements for legal education. Id. Standard 302. In the “Foundations of Practice” survey by the Institute for the Advancement of the American Legal System (IAALS), 78.1% of the respondents chose, “Write in a manner that meets legal and professional standards” as a foundational skill for practice. Alli Gerkman & Logan Cornett, Foundations for Practice: The Whole Lawyer and the Character Quotient fig. 2, IAALS (July 26, 2016), https://iaals.du.edu/publications/foundations-practice-whole-lawyer-and-character-quotient#tab=the-foundations-for-practice [https://perma.cc/2ZAB-CZFP].
See generally Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/index.html [https://perma.cc/LMC9-E5XM].
The federal judiciary has been expanding electronic filing since 2001, https://www.uscourts.gov/court-records/electronic-filing-cmecf/faqs-case-management-electronic-case-files-cmecf [https://perma.cc/3DLB-Q9E5], and is transitioning to its "NextGen CM/ECF system, https://www.uscourts.gov/court-records/electronic-filing-cmecf [https://perma.cc/QV6D-YTPW]. All state courts have some sort of e-filing system, which became even more essential during the COVID-19 pandemic. See State Court Websites, Nat’l Ctr. for State Cts., https://www.ncsc.org/information-and-resources/state-court-websites [https://perma.cc/5ADU-2GQS]. For example, on May 4, 2020, the New York State Unified Court System unveiled an “Electronic Document Delivery System” program that facilitates electronic filing and supplemented its existing court electronic filing system, which has continued to expand. See EDDS FAQ, N.Y. State Unified Ct. Sys., https://iappscontent.courts.state.ny.us/NYSCEF/live/edds/eddsFAQ.pdf [https://perma.cc/Z6VM-EP6F].
Lawyers’ Duty of Technology Competence by State in 2022 [Infographic], Percipient (Mar. 23, 2021, updated Mar. 2022), https://percipient.co/lawyers-duty-of-technology-competence-by-state-infographic/ [https://perma.cc/XBZ4-PSYN].
Model Rules of Pro. Conduct r. 1.1 cmt. 8 (Am. Bar Ass’n 1983), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/ [https://perma.cc/P6CN-WPYW] [hereinafter Model Rules of Pro. Conduct].
ABA Comm. on Ethics & Pro. Resp., Formal Op. 477R (2017), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_477.pdf [https://perma.cc/4KXC-VFZG] [hereinafter ABA Formal Op. 477R].
Toby Brown, Judges + iPads = Perfect Fit? 3 Geeks & a L. Blog (June 12, 2012), https://www.geeklawblog.com/2012/06/judges-ipads-perfect-fi.html [https://perma.cc/3Q5S-L236].
A Vaidyanathan, In a First, Supreme Court Goes Paperless as Judges Use Laptops, NDTV, India News (June 1, 2020), https://www.ndtv.com/india-news/coronavirus-in-a-first-supreme-court-goes-paperless-as-judges-use-laptops-2238988 [https://perma.cc/5H55-P8K6].
Requirements and Suggestions for Typography in Briefs and Other Papers, U.S. Ct. of Appeals for the 7th Cir., https://www.ca7.uscourts.gov/forms/type.pdf [https://perma.cc/T3BF-Z6S4]. Federal and state courts have gone beyond mere filing of “flat” pdf documents and allow or require documents with enhanced digital functionality, for example, hyperlinked table of contents, bookmarks, searchable text, and/or filed in a format that is compatible with the court’s citation hyperlink program. See, e.g., The Leap from E-Filing to E-Briefing: Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs, ABA Council of App. Laws. (2017), https://www.courts.ca.gov/documents/2DCA-the-leap-from-efiling-to-ebriefing.pdf [https://perma.cc/Z8NS-JQSZ]; Stephen T. Maher & Ana Romes, The Quiet Revolution in Brief Writing, ABA L. Prac. Today (Feb. 12, 2016), https://www.lawpracticetoday.org/article/the-quiet-revolution-in-brief-writing/ [https://perma.cc/STU4-YLDW]; Attorney Guide to Hyperlinking in the Federal Courts (For Microsoft Word Users), U.S. Dist. Ct., Dist. of Neb. (rev. Feb. 22, 2022), https://www.ned.uscourts.gov/internetDocs/cmecf/hyperlinking_attorneys_word.pdf [https://perma.cc/4Y86-VRSD].
597 U.S. ___, 142 S. Ct. 2407, 2436, 2438-39 (2022) (Sotomayor, J., dissenting).
591 U.S. ___, 140 S. Ct. 2103, 2114-16, 2129 (2020) (using “bullets” and an annotated map), abrogated by Dobbs v. Jackson Women’s Health Org., 597 U.S. ___, 142 S. Ct. 2228 (2022).
See, e.g., Chief Justice John G. Roberts, Jr., 2019 Year-End Report on the Federal Judiciary, U.S. Sup. Ct., https://www.supremecourt.gov/publicinfo/year-end/2019year-endreport.pdf [https://perma.cc/9M3N-QXD3].
Steve Johansen & Ruth Anne Robbins, Art-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57, 61 (2015).
During the past thirty years, advances in technology, including computer devices, have dramatically changed the ways in which we read and write. See, e.g., Kristen K. Davis, The Reports of My Death are Greatly Exaggerated: Reading and Writing Objective Legal Memoranda in a Mobile Computing Age, 92 Or. L. Rev. 471, 479, 511-21 (2013) (discussing research into on-screen reading and how structural features of a legal memo help improve screen-readers’ comprehension).
The use of artificial intelligence in the writing process is a force to be reckoned with; many of us have already experienced the AI suggestions as we compose our Gmail messages. See Gmail Help: Use Smart Compose, Google, https://support.google.com/mail/answer/9116836?hl=en&co=GENIE.Platform%3DDesktop [https://perma.cc/GJ3R-LY5T] [hereinafter Smart Compose]; see also Steven Johnson, A.I. is Mastering Language. Should We Trust What It Says?, N.Y. Times Mag. (Apr. 15, 2022), https://www.nytimes.com/2022/04/15/magazine/ai-language.html [https://perma.cc/BW4K-RKWK]; Stephen Marche, The Computers Are Getting Better at Writing, New Yorker (Apr. 30, 2021), https://www.newyorker.com/culture/cultural-comment/the-computers-are-getting-better-at-writing [https://perma.cc/5JSF-E4JP].
Dennis Kennedy, 2021 Cloud Computing, ABA Tech Rep. 2021 (Nov. 10, 2021), https://www.americanbar.org/groups/law_practice/publications/techreport/2021/cloudcomputing/ [https://perma.cc/9CFY-WTQF].
See, e.g., Ctr. for Comput. Assisted Legal Instruction (CALI), https://www.cali.org/ [https://perma.cc/CE89-CBDF]; J.D. Certificate in Legal Innovation & Technology, Chicago-Kent Coll. of L., https://www.kentlaw.iit.edu/academics/jd-program/certificate-programs/legal-innovation-and-technology [https://perma.cc/ZQV4-64QC]; Institute for Technology Law and Policy, Georgetown L. Sch., https://www.law.georgetown.edu/tech-institute/ [https://perma.cc/R77F-YLEL]; NuLawLab, Ne. Univ. Sch. of L., https://www.nulawlab.org/ [https://perma.cc/ZG22-HV67]; Legal Design Lab, Stanford L. Sch., https://law.stanford.edu/organizations/pages/legal-design-lab/ [https://perma.cc/3A98-LJNC]; Institute on Legal Innovation & Technology, Suffolk Univ. L. Sch., https://sites.suffolk.edu/legaltech/ [https://perma.cc/CU9G-V3C8]; see also Anay Katyal, CUNY Law Students at Forefront of Technology and the Law in Groundbreaking Course, CUNY Sch. of L. (Oct. 25, 2019), https://www1.cuny.edu/mu/law/2019/10/25/cuny-law-students-at-forefront-of-technology-and-the-law-in-groundbreaking-course/ [https://perma.cc/F6LU-F66Z].
Ellie Margolis, Is the Medium the Message? Unleashing the Power of E-Communication in the Twenty-First Century, 12 Legal Commc’n & Rhetoric J. ALWD, Fall 2015, at 7, 20 (discussing main techniques for creating more effective digital documents, including pdf bookmarking).
See, e.g., Julie A. Baker, And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate, 80 UMKC L. Rev. 287, 301 (2011) (applying “cognitive fluency” principles to legal writing process to support the primary use of plain language because it creates a bond with the reader while acknowledging that more complex language may be necessary depending on the context).
See Conrad Johnson, Lawyering in the Digital Age, in Susan Bryant, Elliott S. Milstein &Ann C. Shalleck, Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy 308, 308-09 (2014).
See, e.g., Davis, supra note 19, at 511.
Other examples include formal legal memoranda and briefs, articles, essays, emails, letters, websites, posts, tweets, blogs, “DIY” guided interviews, court forms, reports, and community education materials.
See, e.g., Ellie Margolis, How is Legal Writing Read and Written? 22 Legal Writing 37, 37-40 (2018) (summarizing the work of pioneering scholars in legal reading and writing in law school and the legal profession and the new questions posed by technology since 1991). For an ethnographic study of how lawyers read, write, and communicate, see generally Ann Sinsheimer & David J. Herring, Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals, 21 Legal Writing 63 (2016).
And increasingly digital tools for editing, revising, accessibility, and readability can help the legal writing process. See, e.g., Grammarly, https://www.grammarly.com/ [https://perma.cc/A33P-U65V]; Microsoft Editor, Microsoft, https://www.microsoft.com/en-us/microsoft-365/microsoft-editor?activetab=tabs%3afaqheaderregion3 [https://perma.cc/28UA-YM4W]; Smart Compose, supra note 20; Edit PDFs With Comments, Adobe, https://www.adobe.com/acrobat/online/pdf-editor.html; see also Readability Formulas, Readable, https://readable.com/features/readability-formulas/ [https://perma.cc/DU3U-BMCH]. See generally Teresa Phelps & Kevin Ashley, “Alexa, Write a Memo”: The Promise and Challenges of AI and Legal Writing, 26 Legal Writing 329 (2022); John Campbell, Ex Machina: Technological Disruption and the Future of Artificial Intelligence in Legal Writing, 5 U. Bologna L. Rev. 294 (2020).
Andrea McArdle, Teaching Writing in Clinical, Lawyering, and Legal Writing Courses: Negotiating Professional and Personal Voice, 12 Clinical L. Rev. 501, 502-04, 537 (2006).
See generally WAC and Second-Language Writers: Research Towards Linguistically and Culturally Inclusive Programs and Practices (Terry Myers Zawacki & Michelle Cox eds., 2014).
See, e.g., Risk for COVID-19 Infection, Hospitalization, and Death By Race/Ethnicity, Ctrs. For Disease Control & Prevention (Nov. 8, 2022), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html [https://perma.cc/D89L-SEMZ].
See generally The Complete Guide to Moore’s Law, History-Computer (Nov. 14, 2021), https://history-computer.com/moores-law/ [https://perma.cc/XQ48-JLTY] (stating that Moore’s Law accurately predicted that the power of microchip processing will double every two years, which is largely responsible for much of the revolution in how digital information is created and processed); Richard Susskind, The Future of Courts, The Practice (July/Aug. 2020), https://thepractice.law.harvard.edu/article/the-future-of-courts/ [https://perma.cc/5MHF-RJH7] (proposing a new service paradigm for courts that focuses on procedural, open, and distributive justice using digital technology and asynchronous communication); Heather Brooke, Inside the Digital Revolution, Colum. SIPA J. Int’l Affs. (Apr. 6, 2017), https://jia.sipa.columbia.edu/inside-digital-revolution [https://perma.cc/BJ4G-DEF2] (discussing the impact of digital technology on democratic processes, participation, and power structures, all of which are interconnected by legal systems and communication).
Tanina Rostain, Techno-Optimism & Access to the Legal System, 148 Daedalus 93, 93–97 (2019), https://www.amacad.org/sites/default/files/publication/downloads/19_Winter_Daedalus_Rostain.pdf [https://perma.cc/7MFC-ESFW] (stating that techno-optimism is the hope that digital information and tools will be usable by those most in need who are unrepresented by an attorney, but opining that a more promising use involves integrating trained advocates and trusted intermediaries in the community with access-to-justice technologies).
See, e.g., LSC Technology Initiative Grant Program Description, Legal Servs. Corp., https://www.lsc.gov/grants/technology-initiative-grant-program/tig-program-description [https://perma.cc/27SD-SJZD]; see also LawHelp, https://www.lawhelp.org/ [https://perma.cc/WU44-E96P]; LegalZoom, https://www.legalzoom.com/ [https://perma.cc/FQ4C-GEQV]; a2j Author, https://www.a2jauthor.org/ [https://perma.cc/V3DB-8ALT];PatternBuilder, https://afterpattern.com/ [https://perma.cc/EDR5-Q84X].
See, e.g., Turning America’s Digital Divide Into Digital Dividends: Policy Recommendations for the Biden Administration, Digit. Planet, https://sites.tufts.edu/digitalplanet/us-digital-divide/ [https://perma.cc/5WJC-LWMZ]; Emily A. Vogels, Digital Divide Persists Even as Americans with Lower Incomes Make Gains in Tech Adoption, Pew Rsch. Ctr., https://www.pewresearch.org/fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-incomes-make-gains-in-tech-adoption/ [https://perma.cc/NK6Y-6LWL].
See, e.g., State v. Loomis, 881 N.W.2d 749 (Wis. 2016) (upholding use of COMPAS automated decision making program in sentencing); Algorithmic Just. League, https://www.ajl.org/ [https://perma.cc/XRS8-LLY9]; Ruha Benjamin, Race After Technology, Ruha Benjamin, https://www.ruhabenjamin.com/race-after-technology [https://perma.cc/ZL2X-DS7C]; Virginia Eubanks, Algorithms Designed to Fight Poverty Can Actually Make It Worse, Sci. Am. (Nov. 1, 2018), https://www.scientificamerican.com/article/algorithms-designed-to-fight-poverty-can-actually-make-it-worse/ [https://perma.cc/DAL4-3KDT]; Safiya Umoja Noble, Algorithms of Oppression: How Search Engines Reinforce Racism 1-14 (2018).
See, e.g., Elizabeth Berenguer, Lucy Jewel, Teri A. McMurtry-Chubb, Gut Renovations: Using Critical and Comparative Rhetoric to Remodel How the Law Addresses Privilege and Power, 23 Harv. Latinx L. Rev. 205, 207-11 (2020); Kathryn M. Stanchi, Resistance is Futile: How Legal Writing Pedagogy Contributes to the Law’s Marginalization of Outsider Voices, 103 Dick. L. Rev. 7, 10 (1998).
The Constitution of the United States: A Transcription,
Senator Cory Booker aptly summarized this inherent tension: “We know our Founders and their values and their ideals. We know that they, that they were flawed, and you can see that in the documents. Native Americans were referred to as savages, women weren’t referred to at all, African Americans—blacks, slaves—were referred to as fractions of human beings.” Senator Cory Booker Opening Statement, Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, U.S. Senate Judiciary Committee Confirmation Hearing, C-SPAN (Sept. 4, 2018), https://www.c-span.org/video/?c4747102/user-clip-kavanaugh-confirmation-cory-booker-opening-statement [https://perma.cc/V26Q-DRH4] (at minute 19:40).
See Kadir Nelson’s"Say Their Names," New Yorker (June 14, 2020), https://www.newyorker.com/culture/cover-story/cover-story-2020-06-22 [https://perma.cc/K3YT-2NLN].
Voting Laws Roundup: October 2022, Brennan Ctr. for Just. (Oct. 6, 2022), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-october-2022 [https://perma.cc/G64Z-3VK9].
Teri A. McMurtry-Chubb, Still Writing at the Master’s Table: Decolonizing Rhetoric in Legal Writing for a “Woke” Legal Academy, 21 Scholar 255, 255, 290 (2019).
See, e.g., Rakefet Ackerman & Morris Goldsmith, Metacognitive Regulation of Text Learning: On Screen Versus on Paper, 17 J. Experimental Psych.: Applied 18, 18, 27-28, 30 (2011).
Nicholas Carr, The Shallows: What the Internet is Doing to Our Brains 7-8, 134-138 (2020); see also Nicholas Carr, Is Google Making Us Stupid?: What the Internet is Doing to Our Brains, Atl. (July/Aug. 2008), https://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ [https://perma.cc/J6HQ-FP7T].
See Emma Whitford, The Myth of Multitasking, Inside Higher Ed (July 27, 2018), https://www.insidehighered.com/news/2018/07/27/class-cellphone-and-laptop-use-lowers-exam-scores-new-study-shows [https://perma.cc/EK8L-TVYK].
Maryanne Wolf, Reader, Come Home: The Reading Brain in a Digital World 47-48, 92-93, 168-187 (2018).
Peter Gardiner, Functional Areas of the Brain [artwork], Science Photo Library, reproduced with permission from sciencephoto.com, https://media.sciencephoto.com/image/c0090458/800wm/C0090458-Functional_areas_of_the_brain,_artwork.jpg [https://perma.cc/45J8-WKZT].
Id. See generally Graham K. Bryant, Legal Writing in a Screen-Filled World, 5 Va. Bar Ass’n Opening Statement 4 (Spring 2017), https://cdn.ymaws.com/www.vba.org/resource/resmgr/yld/OS_Vol5_No2-Spring_2017.pdf [https://perma.cc/89R9-8FMV] (providing a concise summary of main problems with screen reading and practical solutions).
See, e.g., Phelps & Ashley, supra note 31, at 339-75 (explaining some limitations of artificial intelligence in the context of using AI to write a legal memorandum);
Matthew Cobb, Why Your Brain Is Not a Computer, Guardian (February 27, 2020, 1:00 AM EST), https://www.theguardian.com/science/2020/feb/27/why-your-brain-is-not-a-computer-neuroscience-neural-networks-consciousness [https://perma.cc/NHJ2-QRCZ].
For example, we reason “top down” and respond instinctually “bottom up.” Our ancient brain still responds to immediate stimuli, except now it is often coming from computer devices, which creates many ripple effects, including problems with cognitive control due to our distracted mind. See Dr. Adam Gazzaley, The Distracted Mind: Ancient Brains in a High-Tech World (Commonwealth Club November 3, 2016), https://www.commonwealthclub.org/events/archive/podcast/distracted-mind-ancient-brains-high-tech-world [https://perma.cc/A62J-LCFL]. See generally Neuroscape, University of California San Francisco, https://neuroscape.ucsf.edu/ [https://perma.cc/L3WD-RAGY].
Cognitive science has many “brain lessons” that unlock easy to understand insights into how we process information across the life span and how technology can hurt and help how we function. See, e.g., CMH Live: Our Brain’s Development in a Technological World (Computer History Museum February 15, 2018), https://youtu.be/rq8P-25ybcc [https://perma.cc/L45L-JDP8]; see also Walter J. Ong, Writing is a Technology that Restructures Thought, in The Written Word: Literacy in Translation The Wolfson College Lectures 24–25 (Gerd Baumann ed. 1986).
I use the term “digital resident” rather than “digital native” to avoid a false dichotomy and to recognize that although a person has been raised in the digital age, their “discernment” skills may not position them to be skillful in using technology. See Mark Lieberman, The Digital Native Debate, Inside Higher Ed (August 9, 2017), https://www.insidehighered.com/digital-learning/article/2017/08/09/are-digital-natives-more-tech-savvy-their-older-instructors [https://perma.cc/X3KY-85GB].
This includes Millennials, born between 1981 and 1996. Richard Frey, Millennials Overtake Baby Boomers as America’s Largest Generation, Pew Rsch. Ctr. (April 28, 2020), https://www.pewresearch.org/fact-tank/2020/04/28/millennials-overtake-baby-boomers-as-americas-largest-generation/ [https://perma.cc/JGU4-GEXV]. This also includes Generation Z., born between 1996 and 2010. Generation Z, Wikipedia, <https://en.wikipedia.org/wiki/Generation_Z> [https://perma.cc/9D7W-7B9T]; see also Claire Lutkewitte, The First Digital Native Writing Instructors and the Future Multimodal Composition Classroom, CUNY Basic Writing e-Journal, https://bwe.ccny.cuny.edu/LutkewitteDigitalNativeInstructor.html [https://perma.cc/9GYJ-LYR3]; Ellie Margolis & Kristen Murray, Using Information Literacy to Prepare Practice-Ready Graduates, 39 Hawai’i L. Rev. 1, 2-3 (2016) (describing level of comfort with technology of digital natives in comparison with older colleagues from the Baby Boomer and Millennial generations and recommending “information literacy” as a framework for learning); Kari Mercer Dalton, Their Brains on Google: How Digital Technologies Are Altering the Millennial Generation’s Brain and Impacting Legal Education, 16 SMU Sci. & Tech. L. Rev. 409, 417-20 (2017) (explaining neuroplasticity and describing experiment that demonstrated that our brains are rewired by technology, even short one hour sessions on Google for five consecutive days, noting that long term memory is “seat of understanding” because it controls “patterns of knowledge, or schema”).
Taylor Lorenz, Kellen Browning & Sheera Frenkel, Tik Tok Teens and K-Pop Stans Say They Sank Trump Rally, N.Y. Times (June 21, 2020), https://www.nytimes.com/2020/06/21/style/tiktok-trump-rally-tulsa.html.
Margolis & Murray, supra note 60, at 18.
Wolf, supra note 52, at 35-68.
Raymond Kurzweil, Live Forever, Psych. Today (Jan. 1, 2000), https://www.psychologytoday.com/us/articles/200001/live-forever [https://perma.cc/MCK5-FXZX].
Marshall McLuhan, Understanding Media: The Extensions of Man 7 (1964).
Wolf, supra note 52, at 70-72.
Md. Shohadat Hossain Khan, Benadjh Oiriddine Abdou, Janna Kettunen, & Sue Gregory, A Phenomenographic Research Study of Students’ Conceptions of Mobile Learning: An Example From Higher Education, Sage J. (July 4, 2019), https://journals.sagepub.com/doi/10.1177/2158244019861457 [https://perma.cc/7CPG-V46B] (discussing how mobile devices engage students in higher education in a wide variety of ways that promote learning, including engaging with assignments and teacher presentations).
Vogels, supra note 38.
Wolf, supra note 52, at 81.
Model Rules of Pro. Conduct, supra note 9.
Id. r. 1.1 cmt. 8.
See ABA Formal Op. 477R, supra note 10, at 3-5.
Id. at 5.
See generally Mike Chapple, What Is Metadata? ThoughtCo. (Sept. 15, 2020), https://www.thoughtco.com/metadata-definition-and-examples-1019177 [https://perma.cc/47LZ-72QE].
See generally Holly Urban, Common Types of Encryption: What Lawyers Need to Know, Law Tech. Today (July 18, 2018), https://www.lawtechnologytoday.org/2018/07/common-types-of-encryption/ [https://perma.cc/H7RE-DWTL].
See generally Cybersecurity Hygiene Checklist, N.Y. State Bar Ass’n J., Sept./Oct. 2019, at 26.
See generally ABA Formal Op. 477R , supra note 10, at 4-5.
See generally Paul Gil, Internet v. Web: What’s the Difference? Lifewire (April 9, 2020), https://www.lifewire.com/difference-between-the-internet-and-the-web-2483335 [https://perma.cc/73TZ-HHE3].
See generally Difference Between Search Engines and Browsers, GeeksforGeeks.org (June 17, 2022), https://www.geeksforgeeks.org/difference-between-search-engine-and-web-browser/ [https://perma.cc/TQ59-DQDV].
See generally The Soc. Media & New Techs. Comm. of the Com. & Fed. Litig. Section of the N.Y. State Bar Ass’n, Social Media Ethics Guidelines, N.Y. State Bar Ass’n (June 20, 2019), https://nysba.org/app/uploads/2020/02/NYSBA-Social-Media-Ethics-Guidelines-Final-6-20-19.pdf [https://perma.cc/9R5R-894N].
Professor Johnson is a co-founder of Columbia Law School’s Lawyering in the Digital Age Clinic.
Johnson, supra note 26, at 315.
Id. at 310, 312-13. Professor Johnson is describing a type of digital literacy for legal workers who are managing information in the digital age. More broadly, digital literacy refers to “how individuals navigate and employ digital tools to consume and produce information,” including a critical understanding of the historical and cultural context of technology, how the internet actually works, the transition from analog to digital, and how to use technology to solve problems and create solutions. See e.g., Alexandra W. Watkins, Digital Literacy, Writing Commons, https://writingcommons.org/section/literacy/digital-literacy/ [https://perma.cc/FBQ3-PGWV].
Johnson, supra note 26, at 315.
Id. at 314-15.
See e.g., Davis, supra note 19, at 488, 520 (arguing that time honored methods for organizing and structuring documents are effective regardless of medium).
Ruth Ann Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design Into the Text of Legal Documents, 2 Legal Commc’n & Rhetoric: JALWD 108 (2004).
Johansen & Robbins, supra note 18, at 59-73.
Davis, supra note 19, at 511.
Margolis, supra note 24, at 15-27 (discussing primary methods for creating more effective digital documents, including pdf bookmarking).
Id. at 12.
See Mark Yates, Text Is Still a Noun: Preserving Linear Text-Based Literacy in an E-Literate World, 18 Legal Writing 119, 120 (2012) (distinguishing digital multi-modal nonlinear literacy from linear literacy and arguing that deliberative, focused linear literacy is essential for law students).
See, e.g., Olena Vasylets & Javier Marin, Pen-and-Paper Versus Computer-Mediated Writing Modality as a New Dimension of Task Complexity, Languages, July 27, 2022, at 1, 4.
See, e.g., Johansen & Robbins, supra note 18, at 64 (“Analytical visuals do not attempt to prove what happened in a legal dispute. Rather, they help to explain how that dispute should be resolved by creating a visual understanding of abstract legal analysis . . . .”).
In this context, the term “accessible” has a dual meaning: to make it easy to read for the intended audience and also to incorporate principles of “universal design” that benefit all readers, not only those with visual challenges. See, e.g., About Universal Design for Learning, CAST, https://www.cast.org/impact/universal-design-for-learning-udl [https://perma.cc/3GJQ-LSLG]; Universal Design for Learning, Cornell Univ. Ctr. for Teaching Innovation, https://teaching.cornell.edu/teaching-resources/designing-your-course/universal-design-learning [https://perma.cc/Q9VS-BVSV].
See generally, e.g., Requirements and Suggestions for Typography in Briefs and Other Papers, supra note 14 (providing Seventh Circuit typography guidelines); Linda Berger, Document Design for Lawyers: The End of the Typewriter Era, Ga. Bar J., Feb. 2011, at 62.
For examples of these visual representations on the internet, see COVID-19 Dashboard, Johns Hopkins Univ. & Med. Coronavirus Res. Ctr., https://coronavirus.jhu.edu/map.html [https://perma.cc/BXF4-UNND]; Our World in Data, https://ourworldindata.org/ [https://perma.cc/68BM-W6VH]; The Work of Edward Tufte and Graphic Press, https://www.edwardtufte.com/tufte/ [https://perma.cc/Q4PN-A8PL].
For examples of and instructions for best practices in writing, see Jane Rosenzwieg, Opinion, The Whistle-Blower Knows How to Write, N.Y. Times (Sept. 27, 2019), https://www.nytimes.com/2019/09/27/opinion/whistleblower-complaint.html (using a whistle-blower complaint about the U.S. President’s contact with the Ukraine President to illustrate best practices in writing: be direct and to the point, use sub-headings, topic sentences, and active verbs); William Strunk, Jr. & E.B. White, Strunk & White: The Elements of Style (4th ed. 1999); Harry Guinness, How to Edit Your Own Writing, N.Y. Times (April 10, 2020), https://www.nytimes.com/2020/04/07/smarter-living/how-to-edit-your-own-writing.html (emphasizing importance of writing multiple drafts; identifying common errors, such as passive voice; stepping back from your draft and reading it aloud; cutting text; creating a strong beginning; paying attention to structure; and using available resources to help with grammar and spelling); Stephen V. Armstrong, Timothy P. Terrell, & Jarrod F. Reich, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing (4th ed. 2021); Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (2d ed. 2014).
See generally Strunk & White, supra note 102; Guinness, supra note 102; Armstrong, Terrell, & Reich, supra note 102; Guberman, supra note 102.
Closely related to digital functionality, which describes attributes of a document, “digital fluency” refers to a person’s communication skills that are adapted to the digital environment (“reading, writing, listening, speaking, viewing, and representing”). Shuana Niessen, What is Digital Fluency? (Apr. 19, 2013) (research paper for EC&I 830, University of Regina), https://www.researchgate.net/publication/283266223_What_is_Digital_Fluency [https://perma.cc/H8FB-Q3PV]. In the writing context, digital fluency would include the ability to effectively create and manage digital documents (including word processing programs such as Microsoft Word and Google Docs, and PDF files). incorporate digital functionality in documents, and present written information in a variety of digital media. See generally, Jennifer Sparrow, Digital Fluency: Preparing Students to Create Big, Bold Problems (Educause March 12, 2018), https://er.educause.edu/articles/2018/3/digital-fluency-preparing-students-to-create-big-bold-problems [https://perma.cc/79YL-PYAZ].
To prevent broken links (“linkrot”), it may be necessary to include permanent, archival links for URLs (Uniform Resource Locators, i.e., website addresses). See, e.g., Perma.cc, https://perma.cc/ [https://perma.cc/V2QY-MGDW]; Jonathan Zittrain, John Bowers & Clare Stanton, The Paper of Record Meets an Ephemeral Web: An Examination of Linkrot and Content Drift within The New York Times, Libr. Innovation Lab, Harvard L. Sch. (Apr. 26, 2021), https://dash.harvard.edu/handle/1/37367405 [https://perma.cc/L8JT-YK5F].
See generally Michael-John DePalma & Jeffrey M. Ringer, Toward a Theory of Adaptive Transfer: Expanding Disciplinary Discussions of “Transfer” in Second-language Writing and Composition Studies, 20 J. Second Language Writing 134 (2011) (explaining adaptive transfer as it applies to writing and drafting).
Although the focus of adaptive transfer research is on English as a second language students, it is universal in that all students benefit from teaching that encourages adaptive transfer strategies to learn new writing formats and genres. These strategies are equally appropriate and necessary as law students and new attorneys learn the norms of legal writing as they gain experience and develop their skills.
See DePalma & Ringer, supra note 117, at 141. For example, a group of nursing students learned how to write a highly structured care plan in their French-speaking university in Quebec. When they graduated and worked as nurses in an English-speaking hospital in Montreal, they were required to write plans that did not include the three-part structure and medical diagnosis terminology that they learned in school. They drew on both their prior learning experience and the current demands of their workplace to adapt their writing to the new format. Id. at 142-43.
Id. at 142-45.
Id. at 143-44.
See id. at 144.
Anne Trubek, Student Writing in the Digital Age, JSTOR Daily (Oct. 19, 2016), https://daily.jstor.org/student-writing-in-the-digital-age/ [https://perma.cc/LMK2-FJ2S].
Johansen & Robbins, supra note 18, at 76-77 (explaining how thinking visually helps lawyers plan and strategize).
In the fall of 2019, at CUNY Law School, I taught a class, Lawyering in the Digital Age, to students and faculty in two clinics: an “in house” clinic and an “external placement” clinic. Most of the students had not been taught or required to use visual design techniques or hyperlinks in law school. Most of the students in the externship clinic also said they were reluctant to submit digital documents to their supervisors, the majority of whom appeared to want/prefer/require paper copies of written work. Our discussion resulted in a suggestion/recommendation to submit both a paper version and a digital version of documents and to let the supervisor know that the digital document will include hyperlinks and internal document functionality the supervisor may find helpful.
A flattened PDF is locked so that forms and check boxes are no longer fillable. E.g., How to Flatten PDF Forms, U.S. Ct. App. for the 4th Cir., https://www.ca4.uscourts.gov/caseinformationefiling/efiling_cm-ecf/technical-information/flatten-pdf-fillable-form [https://perma.cc/9C3H-NXM2].
McArdle, supra note 32, at 538-39.
Law students learn this structure in an alphabet soup of acronyms: IRAC; CRRAC; CIRIP; or CREXAC, to name a few. Judges, their interns, and court attorneys frame legal opinions around these core components. Attorneys who write opinion letters, office memoranda, advocacy briefs, affirmations, and other analytical documents also follow this structure, even as they adapt and vary it to specific contexts.
Davis, supra note 19, at 474, 479.
See Johansen & Robbins, supra note 18, at 64-65, 76-77.
See generally George O. Ilenikhena, Haajra Narmawala, Allison M. Sklenar, Matthew P. McCurdy, Angela H. Gutchess & Eric H. Leshikar, STOP SHOUTING AT ME: The Influence of Case and Self-Referencing on Explicit and Implicit Memory, Frontiers in Psychol. at 8 (June 9, 2021) (“Thus, the data in this experiment suggest that writing materials in upper case may not be an altogether effective strategy and may actually produce poorer memory for the cued text when considering both item and context memory together.”).
See Matthew Butterick, Typography For lawyers: essential tools for polished & persuasive documents, 82-85 (Jones McClure Publ’g 2d ed. 2015). See generally Robbins, supra note 91, at 115-18.
Digital functionality has become ubiquitous. For example, digital versions of newspapers, magazines, and other publications include these features, as do web publishing platforms.
See Section I, supra.
See Ilenikhena, Narmawala, Sklenar, McCurdy, Gutchess & Leshikar, supra note 131, at 1, 8-9.
N.Y. Mental Hyg. § 81.36(d) (McKinney 2022), https://codes.findlaw.com/ny/mental-hygiene-law/mhy-sect-81-36.html [https://perma.cc/F3ZZ-LLVR].
Findlaw, supra note 111.
N.Y. Mental Hyg. § 81.02(b), https://codes.findlaw.com/ny/mental-hygiene-law/mhy-sect-81-02.html [https://perma.cc/FLP9-ELG8].
Id. § 81.02(c).
Id. § 81.03(h).
In re Doe, 181 Misc. 2d 787, 792 (N.Y. Sup. Ct. Nassau Cnty. 1999).
In re Fritz G., 164 A.D.3d 503, 504 (N.Y. App. Div. 2d Dep’t 2018).
N.Y. Mental Hyg. § 81.02(b).
In re David C., 294 A.D.2d 433, 434 (N.Y. App. Div. 2d Dep’t 2002).
McArdle, supra note 32.
Id. at 527-32.
Professor McArdle defines “voice” as “the combinations of word choice, tone, structure, and syntax, and the unconscious influences contributing to them, that inform and help to distinguish individual writing.” Id. at 503.
See generally Wolf, supra note 52, at 58-68, 83 (exploring the multidimensional process during which the reader’s brain interacts with the writer’s text).
McArdle, supra note 32, at 506.
Id. at 507. Posner
links the “pure” style with its “jargon . . . solemnity, the high sheen, the impersonality” to legal formalism, which he characterizes as a “logical, impersonal, objective, constrained character of legal reasoning.” Posner couples the “impure” style, concerned with bridging distances between writer and reader, and thus more likely to be “conversational,” less detailed, and more “concrete,” with pragmatism, an approach to the “nonroutine case” that strives to achieve the “most reasonable result,” while taking into account the effect of previous decisions and other authoritative texts. In Posner’s formulation, the impure style is more exploratory, and somewhat more engaging, in the sense that it “invites . . . the writer to dig below the verbal surface of the doctrines that he is interpreting and applying.”
Id. at 514.
See Andrea J. McArdle, Understanding Voice: Writing in a Judicial Context, 20 Legal Writing: J. Legal Writing Inst. 189, 193-97 (2015). See generally Andrea J. McArdle, Using a Narrative Lens to Understand Empathy and Why it Matters in Judicial Writing, 9 Legal Commc’n & Rhetoric: JALWD 173, 183 (2012).
476 F. Supp. 3d 386 (S.D. Miss. 2020).
42 U.S.C. § 1983.
476 F. Supp. 3d at 390-91. In the original Order, the footnotes to the sentences I quote are numbered sequentially from 1-19. Note that the text of these footnotes are direct quotations from the original Order.
Id. at 390. “That was Michael Brown. See Max Ehrenfreund, The risks of walking while black in Ferguson, Wash. Post (Mar. 4, 2015).” Id. at 390 n.1.
Id. at 390. “That was 12-year-old Tamir Rice. See Zola Ray, This Is The Toy Gun That Got Tamir Rice Killed 3 Years Ago Today, Newsweek (Nov. 22, 2017).” Id. at 390 n.2.
Id. at 390. “That was Elijah McClain. See Claire Lampen, What We Know About the Killing of Elijah McClain, The Cut (July 5, 2020).” Id. at 390 n.3.
Id. at 390. “That was Eric Garner. See Assoc. Press, From Eric Garner’s death to firing of NYPD officer: A timeline of key events, USA Today (Aug. 20, 2019).” Id. at 390 n.4.
Id. at 390. “That was George Floyd. See Jemima McEvoy, New Transcripts Reveal How Suspicion Over Counterfeit Money Escalated into The Death Of George Floyd, Forbes (July 8, 2020).” Id. at 390 n.5.
Id. at 390. “That was Philando Castile and Tony McDade. See Andy Mannix, Police audio: Officer stopped Philando Castile on robbery suspicion, Star Trib. (July 12, 2016); Meredith Deliso, LGBTQ community calls for justice after Tony McDade, a black trans man, shot and killed by police, ABC News (June 2, 2020).” Id. at 390 n.6.
Id. at 390. “That was Jason Harrison. See Byron Pitts et al., The Deadly Consequences When Police Lack Proper Training to Handle Mental Illness Calls, ABC News (Sept. 30, 2015).” Id. at 390 n.7.
Id. at 390. “That was Charles Kinsey. See Florida policeman shoots autistic man’s unarmed black therapist, BBC (July 21, 2016).” Id. at 390 n.8.
Id. at 390.
That was 17-year-old James Earl Green. See Robert Luckett, In 50 Years from Gibbs-Green Deaths to Ahmaud Arbery Killing, White Supremacy Still Lives, Jackson Free Press (May 8, 2020); see also Robert Luckett, 50 Years Ago, Police Fired on Students at a Historically Black College, N.Y. Times (May 14, 2020); Rachel James-Terry & L.A. Warren, ‘All hell broke loose’: Memories still vivid of Jackson State shooting 50 years ago, Clarion Ledger (May 15, 2020).
Id. at 390 n.9.
Id. at 390. “That was Ben Brown. See Notice to Close File, U.S. Dep’t of Justice, Civil Rights Div. (Mar. 24, 2017), available at https://www.justice.gov/crt/case-document/benjamin-brown-notice-close-file; see also Jackson State Univ., Center for University-Based Development, The Life of Benjamin Brown, 50 Years Later, W. Jackson (May 11, 2017).” Id. at 390 n.10.
Id. at 391. “That was Phillip Gibbs. See James-Terry & Warren, supra.” Id. at 391 n.11.
Id. at 391. “That was Amadou Diallo. See Police fired 41 shots when they killed Amadou Diallo. His mom hopes today’s protests will bring change., CBS News (June 9, 2020).” Id. at 391 n.12.
Id. at 391. “That was Botham Jean. See Bill Hutchinson, Death of an innocent man: Timeline of wrong-apartment murder trial of Amber Guyger, ABC News (Oct. 2, 2019).” Id. at 391 n.13.
Id. at 391. “That was Breonna Taylor. See Amina Elahi, ‘Sleeping While Black’: Louisville Police Kill Unarmed Black Woman, NPR (May 13, 2020).” Id. at 391 n.14.
Id. at 391. “That was Rayshard Brooks. See Jacob Sullum, Was the Shooting of Rayshard Brooks ‘Lawful but Awful’?, Reason (June 15, 2020).” Id. at 391 n.15.
Id. at 391. “That was Sandra Bland. See Ben Mathis-Lilley & Elliott Hannon, A Black Woman Named Sandra Bland Got Pulled Over in Texas and Died in Jail Three Days Later. Why?, Slate (July 16, 2015).” Id. at 391 n.16.
Id. at 391. “That was Walter Scott. See Michael E. Miller et al., How a cellphone video led to murder charges against a cop in North Charleston, S.C., Wash. Post (Apr. 8, 2015).” Id. at 391 n.17.
Id. at 391. “That was Hannah Fizer. See Luke Nozicka, ‘Where’s the gun?’: Family of Sedalia woman killed by deputy skeptical of narrative, Kansas City Star (June 15, 2020).” Id. at 391 n.18.
Id. at 391. “That was Ace Perry. See Jodi Leese Glusco, Run-in with Sampson deputy leaves driver feeling unsafe, WRAL (Feb. 14, 2020).” Id. at 391 n.19.
Id. at 391.
In contrast, consider the more formal opening of Judge Reeves’s decision in Brown v. Madison County, a class action brought by Black plaintiffs against the Madison County Police Department, based on unlawful search and seizures that were accompanied by unjustified and excessive force:
This matter is before the Court on the Plaintiffs’ and Defendants’ Joint Motion For Entry of Consent Decree. After review of the facts, relevant law, the settlement agreement, the Consent Decree itself, and the presentations of counsel at the hearing on the Motion, the Court finds the Consent Decree to be fair, adequate and reasonable. Accordingly, and as discussed in the following, the Court grants the Joint Motion.
No. 3:17-CV-347, 2019 U.S. Dist. LEXIS 177090, at *3 (S.D. Miss. Oct. 11, 2019).
Consider a six-word short story, often attributed to Ernest Hemingway, but that may have predated him: “For sale: Baby shoes, never worn.” https://en.wikipedia.org/wiki/For_sale:_baby_shoes,_never_worn [https://perma.cc/XKA8-AL9M]; Wolf, supra note 52, at 41.
“[A] backlash . . . by white people against the success and achievements of black people[.]” Whitelash, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/whitelash [https://perma.cc/7NCC-KQD4]; see also Van Jones discusses ‘whitelash’ comments, CNN, Nov. 9, 2016, https://youtu.be/ISGKonidUpY [https://perma.cc/SHW9-8NWM].
476 F. Supp. 3d at 391-92.
Id. at 392.
Id. at 396.
Id. at 397.
Id. at 402.
My analysis for purposes of this article is limited primarily to the powerful beginning portion of the Order.