Wisconsin Lawyer: 101 E-filing: How to Craft Effective Motions and Briefs in the Digital Era:

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    E-filing: How to Craft Effective Motions and Briefs in the Digital Era

    It’s not just the facts, Ma’am. In the real world, the look of motions and briefs, especially ones that are e-filed, can affect a judge’s reaction to a case.

    Laura J. Lavey & Charles Baruch

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    The Wisconsin Supreme Court recently implemented a transition to mandatory e-filing in Wisconsin courts. The new rule (Wis. Stat. § 801.18) took effect on July 1, 2016, beginning the phase-in of mandatory e-filing across the state.1

    With this change, Wisconsin joins the national movement toward mandatory e-filing in lieu of paper filing. Some states have used e-filing for years. For example, Texas (where one of the authors of this article resides) implemented mandatory e-filing in all appellate and metropolitan trial courts several years ago. Except in the smallest counties, Texas lawyers no longer file any paper briefs or pleadings. Wisconsin is headed in the same direction.

    E-filing creates unique drafting challenges for lawyers. As anyone who has read an online newspaper knows, reading on a computer screen differs from paper reading. This holds true for legal writing as well. Reading a brief on a computer screen differs from reading a paper brief. This article presents a series of ideas for creating more effective motions and briefs in the e-filing environment.2

    Reasons to Format Differently for E-filing

    Legal writing suffers from a dismal reputation. “[T]he term ‘legal writing’ has become synonymous with poor writing: specifically, verbose and inflated prose that reads like – well, like it was written by a lawyer.”3 Legal writing too often engenders “convoluted sentences, tortuous phrasing, and boring passages filled with passive verbs.”4

    Chad Baruchcom Chad jtlaw Chad Baruch, Minnesota 1991, is a partner with Johnston Tobey Baruch, Dallas, Texas, where he focuses on civil and criminal appeals. He is admitted to practice in Wisconsin and Texas and is board certified in Civil Appellate Law by the Texas Board of Legal Specialization. In 2015, Baruch filed what one newspaper deemed “the greatest amicus brief in Supreme Court history” on behalf of what the New York Times called “a glittering array of hip-hop stars.”

    Laura Laveycom Laura.Lavey wilaw Laura Lavey, Marquette 2010, is a litigation associate with O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee, where she focuses on representing clients in the prosecution and defense of civil litigation matters, primarily in the areas of commercial and business litigation.

    If this was true in the paper era, it will only accelerate in the digital age. Computers are changing the way judges, lawyers, and everyone else read. People read faster – and less deeply – on computer screens. Computer readers skim more frequently than paper readers, navigating text rapidly. They seek out headers and summaries, tending to read the first paragraph of a text and then skim the remainder. Research suggests that when people read on screens, “sustained attention seems to decline” and retention suffers.5

    Anyone who has navigated a website knows that computer readers expect information to be at their fingertips. The title of a prominent book on web design aptly summarizes our feelings: “Don’t Make Me Think.”6 Computer readers want information easily. They want it obvious. And they want it now.

    The implications for lawyers creating e-filed documents are clear. Even the most conscientious judge reading on a computer screen is more likely to skim lawyers’ work, absorbing less of the content. Fortunately, lawyers can take several simple steps to counteract this natural tendency.

    How to Format for E-filing

    Choose a Clean Font. It may seem silly, but font choice affects readability – especially for computer reading. Avoid strange or quirky fonts. Novelty, script, and handwriting fonts are inappropriate for legal documents. Worse than that, they are distracting and undermine writer credibility.

    For an e-filed document, give some thought to font size. Of course, some courts have rules requiring a certain font size. But more often, the rule simply sets a minimum size. Consider using a larger font size than the rule requires. Reading even 14-point font on a computer screen can tax the eyes. And many people begin to develop various eyesight issues in middle age that may make a larger font size helpful to them in reading a brief. 

    Finally, choose a simple proportional font. One of our favorites is the Equity font designed specially for legal documents by typographer Matthew Butterick.7 Avoid using Courier and Arial.

    A brief prepared in Garamond is readable.

    A brief prepared in Courier is not.

    Neither is one prepared in Arial.

    And definitely not any sort of novelty font.

    Finally, try to avoid fonts that look as though they escaped from a horror film.

    12 Tips to Format E-filed Documents

    If you follow these 12 tips, your e-filed documents will be more likely to keep your audience’s attention and your clients will benefit from the full presentation of their cases.

    1. Choose a clean font.
    2. Avoid capitals and underlining.
    3. Keep it short and simple.
    4. Use more white space.
    5. Provide an easy-to-read table of contents.
    6. Provide frequent headers.
    7. Use one space between sentences.
    8. Use hyperlinks.
    9. Make smart use of visuals.
    10. Use topic sentences, and know where to put them.
    11. Break up information.
    12. Provide introductions and summaries.

    Avoid Capitals and Underlining. Once you have chosen a clean and simple font, use it simply. In other words, use features such as boldface or italicized font sparingly – if at all. In particular, avoid using all CAPITAL letters. They are not very readable. Consequently, readers usually skim or skip text written in all capitals.

    Similarly, avoid the curious convention of capitalizing the first letter of every word in a section title or header. Again, this is not readable in print and becomes even less so on the screen. Use ordinary sentences for headers. And, we recommend using ordinary numbers rather than Roman numerals. Here, the first example outshines the second (and the third is awful):

    1. Smith’s claims are barred by limitations.

    l. Smith’s Claims Are Barred By Limitations.

    l. SMITH’S CLAIMS ARE BARRED BY LIMITATIONS.

    Keep It Short and Simple. Computer readers don’t want to – and probably won’t – work hard to absorb content. They demand easily accessible information. Give it to them. Everything lawyers write is too long. Edit ruthlessly to make your motion or brief as short as possible. Don’t waste time or space with antiquated introductory legalese. Use simple structure, sentences, and words. In short, get to the point – quickly. And once you make your point, stop writing.

    Use More White Space. Computer readers require more white space (meaning any portion of a page that does not contain print or imagery). Web pages condition our brains to expect it. You can use several tools to increase white space. One of the best is headers. Don’t limit your use of headers to the argument section; use them in recounting the facts, too (more on that in a moment). Adding an extra line between sections also increases white space and gives the reader a small break from text.

    Provide an Easy-to-read Table of Contents. In an e-filed document, the table of contents (with its corresponding bookmarks) is not just a roadmap but a navigation tool as well. Make your table of contents easy to understand and use. This means using shorter section titles and ordinary print. It also means more white space. Don’t clutter your table of contents with so much text that it overwhelms the eye. Similarly, don’t use multiple font features that make the table difficult to read. Keep it clean and simple.

    Provide Frequent Headers. Headers guide the reader through your writing and give the brain a break by providing white space. Thoughtful headers provide powerful summaries and a useful roadmap.  The ideal header is a one-sentence statement in the form of a positive assertion of the material following it, rather than merely a signpost. Here are examples of weak headers, both factual and argumentative:

    1. The underlying lawsuit

    2. The appellate decision

    3. Jurisdiction

    4. The accident photographs

    Here are examples of the same headers written in more powerful language:

    1. Smith sues Jones for fraud in the house sale.

    2. The court of appeals affirms based on lack of reliance evidence.

    3. This Court has jurisdiction – and reason to exercise it.

    4. The accident photographs were inadmissible hearsay.

    Using headers throughout your motion or brief will make it more readable, understandable, and persuasive.

    Use One Space Between Sentences. The convention of using two spaces between sentences is a relic of the typewriter era. Nothing justifies continuing to use two spaces between sentences. Despite a complete lack of contrary authority, a surprising number of people remain wedded to using two spaces. But writing authorities including Bryan Garner and the Chicago Manual of Style uniformly reject the use of two spaces. The Bluebook does not discuss the issue – but uses one space both in its text and its examples. The Seventh Circuit feels strongly enough about the matter to mandate the use of one space between sentences. Follow these authorities and use one space.

    Use Hyperlinks. E-filing permits the drafting lawyer to use hyperlinks that permit the reader to click on a link and view the linked material. This makes it possible for judges to click and view both case citations and particularly important portions of the supporting record. If you are relying on (or distinguishing) important cases, include them with your motion or brief and provide hyperlinks. Do the same for important portions of the record and crucial exhibits.

    Make Smart Use of Visuals. E-filing presents wonderful opportunities for lawyers to use visuals both to illuminate the facts and to persuade judges. Instead of describing a corporate structure, for example, a lawyer now can drop the organizational chart into the appropriate point of the brief. Similarly, lawyers can use things such as maps and photos to help judges understand the facts and persuade them of legal positions.

    This capability existed, at least in theory, in paper briefing. But e-filing makes it easy for even a relatively unsophisticated formatter to drop visuals into a legal document. And it makes the images themselves much crisper in most instances. Thus, whenever possible and helpful, show the judge what you are talking about rather than just explaining it.

    As anyone who has read an online newspaper knows, reading on a computer screen differs from paper reading. This holds true for legal writing as well.

    Use Topic Sentences (and Know Where to Put Them). As previously noted, research indicates that screen readers are skimmers who focus most resolutely on the first sentence of a paragraph. In recognition of this fact, use strong topic sentences. And avoid the odd practice of putting them at the end of the paragraph. Your topic sentence should lead the paragraph. It should be short, powerful, and easy to read.

    Break Up Information. Also in recognition of the skimming impulse, provide chunks of information in formats more easily digested by the computer reader. Consider, for example, the elements of a claim for negligence. Here is one way of presenting them:

    The elements of negligence under Wisconsin law are: 1) [a] duty to conform to a certain standard of conduct to protect others against unreasonable risks; 2) a failure to conform to the required standard; 3) a causal connection between the conduct and the injury; and 4) actual loss or damage as a result of the injury. Thomas v. Kells, 53 Wis. 2d 141, 144, 191 N.W.2d 872, 873-74 (1971).

    That is a lot to absorb in ordinary text format on a computer screen. Here is how to make this information more digestible for the computer reader:

    The elements of negligence under Wisconsin law are:

    1. [a] duty to conform to a certain standard of conduct to protect others against unreasonable risks;

    2. a failure to conform to the required standard;

    3. a causal connection between the conduct and the injury; and

    4. actual loss or damage as a result of the injury.

    Thomas v. Kells, 53 Wis. 2d 141, 144, 191 N.W.2d 872, 873-74 (1971).

    Provide Introductions and Summaries. Introductions always are important in legal writing. The advent of e-filing heightens this importance. An ideal introduction introduces the reader to your case, sets out the argument, explains why your client should win, and engages the reader. And it does all of this quickly.

    One of the all-time great introductions to a legal brief, cited by Bryan Garner in his wonderful book The Winning Brief, is this opening paragraph of the shareholders’ brief in a complex takeover case:

    “NL Industries is owned by its shareholders. The board of directors works for them. The shareholders want to sell their stock to Harold Simmons. The board won’t let them.”8

    Perfect! This introduction engages the reader while providing an exceptionally simple statement of the facts and argument. More important, it accomplishes all of this in four short sentences. Here is another, slightly longer, example of an outstanding introduction. This introduction falls into the category of the “who wins and why” introduction. It is the first paragraph of the judicial opinion deciding the case. But it also would have made an excellent introduction for the appealing party’s brief:

    “Neither a plaintiff’s poverty nor a defendant’s wealth can help a jury decide whose negligence caused an accident.Even though punitive damages were not at issue in this collision case, the plaintiffs tendered evidence that the defendant’s annual revenues were $1.9 billion. Because this evidence was inadmissible, and the record reflects that it probably caused an improper verdict, we reverse and remand for a new trial.”9

    Finally, don’t forget that these same principles apply to short motions in the circuit court. Dump the preliminary legalese. The next time you file a motion for continuance, consider replacing:

    “Comes now Plaintiff John Smith and files this Motion for Continuance, respectfully showing the Court as follows.…”

    with:

    “John Smith seeks a continuance due to non-elective surgery he is scheduled to undergo on the day of trial.”

    After reading the first sentence of your motion, the court will know what you seek, and why.

    Accommodating Hard Copy Readers

    Even with mandatory e-filing, some judges insist on printing every motion and brief rather than reading them on the computer screen. Lawyers sometimes wonder whether formatting for the computer reader will create issues for these “print-and-read” judges. The answer is no. The suggestions in this article are designed to enhance the readability and utility of e-filed instruments. But they will not detract from printed motions and briefs. Indeed, in most instances, they should improve them.

    Conclusion

    This article encourages lawyers to think about how they format e-filed motions and briefs. Too many lawyers simply create documents in the same format they used for paper filings, and then convert to PDF without any consideration for how the document will look on a computer screen. This is a disservice both to judges and to clients.

    Of course, as with any suggestion concerning legal writing, remember that rules – at least many of them – were made to be broken. So, to paraphrase Richard Bach’s reluctant messiah:

    Everything in this article may be wrong.10

    Meet Our Contributors

    What piece of advice would you impart to lawyers who are just starting out?

    Laura LaveyApproach the practice of law with gratitude. Our clients put their trust and faith in us to guide them through difficult times in their lives – whether that be by helping them start a business, counseling them through a sale, guiding them through a dispute, or protecting their personal freedoms – which in itself demands a certain level of appreciation on our part.

    On a more personal level, new lawyers need to know that the practice of law can be hard. They undoubtedly will face problems, challenges, and disappointments that, at times, will leave them feeling overwhelmed and defeated. But instead of succumbing to the stress and pressures of those problems, I would challenge them to learn to appreciate the lessons that each of those experiences brings. Learn to say thank-you for those problems and challenges – you may not like them, but learn to say thank-you anyway. Because from each experience, good or bad, there is something to be learned. And that lesson, in itself, is reason enough to be grateful. It gives us the opportunity to grow not only in our professional lives, but in our personal lives as well.

    Approaching the practice of law with gratitude allows us to make the most of the experiences we encounter, which, in turn, fosters positive development and helps us better serve our clients, our bar, and our communities.

    com Laura.Lavey wilaw Laura Lavey, O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee.

    What is your favorite nonwork activity?

    Chad BaruchOther than spending time with my family, it would be coaching basketball. Throughout my 25 years’ practicing law, I always have maintained a parallel career in coaching. I have been a men’s head basketball coach at the high school, NAIA, and NCAA levels, coaching in more than 500 games. And when it comes to basketball, you can take the boy out of Wisconsin, but you can’t take the Dick Bennett system out of the boy!

    com Chad jtlaw Chad Baruch, Johnston Tobey Baruch, Dallas. 

    Endnotes

    1 For more information regarding the change, see www.wicourts.gov/efile and www.wicourts.gov/ecourts/efilecircuit/index.jsp

    2 The authors acknowledge the outstanding work in this area by Robert Dubose, a partner with the Texas law firm of Alexander Dubose Jefferson & Townsend. Readers interested in learning more about the way screen reading affects us should consult Dubose’s book, Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World (2010).

    3 Steven Stark, Why Lawyers Can’t Write, 97 Harv. L. Rev. 1389, 1389 (1984). 

    4 Id.

    5 Annie Sneed, Everything Science Knows About Reading On Screens, Fast Company, July 8, 2015.

    6 Steve Krug, Don’t Make Me Think (2006).

    7 Matthew Butterick, Typography for Lawyers: Essential Tools for Polished & Persuasive Documents (2010).

    8 Bryan Garner, The Winning Brief 99 (2004).

    9 Reliance Steel Aluminum Co. v. Sevcik, 267 S.W.3d 867, 868-69 (Tex. 2008).

    10 Richard Bach, Illusions: The Adventures of a Reluctant Messiah 136 (1977).