10.3 WRITING FOR THE DIGITAL READER

Lawyers, perhaps more than those in any other profession, have benefitted from the information revolution. We can now access information almost anywhere, and at almost any time, thanks not only to smartphones, laptops, and tablets, but also to computer research databases and wireless access to those databases.

But easy access comes with costs as well as benefits, and scientific research is beginning to show that digital readers do not read or comprehend information as effectively as readers of hard-copy documents.¹⁰At first glance, this result seems surprising. After all, judges and clerks read both digital and paper documents by deciphering the same 26 letters, by using their eyes to read those letters, and by moving their eyes from left to right across the line of text. But it turns out that the medium in which we encounter the written word has an effect on how well we comprehend the information that we read.¹¹

First, judges and clerks — like all readers — are reading with more than just their eyes. If they are reading a hard-copy brief, they are likely holding it in their hands; their hands give them a physical awareness of the heft of the document, and of where they are within it — the beginning, middle, or end. They have this awareness without making conscious effort, without even glancing around for a page number. In other words, they encounter the information physically as well as visually, and they maintain a subconscious image of the complete document. Even as they focus on one page, one sentence, or one word, they subconsciously imagine the physical context of the words they are reading, often retaining both the location within the document and the location on the page or pair of pages.¹² Because they have this spatial concept of how the pieces of information fit into the document, they can more easily grasp both large- and small-scale organization.

When people read digital documents, in contrast, it is more difficult for them to conceptualize the parts they are not reading. They know that an electronic brief does not exist inside the computer as a physical stack of pages; even if their electronic device simulates the sound of pages turning as they read, they never perceive the physical movement from the beginning of the document to the end: Physically, they perceive every page identically. Comprehension suffers even more if they must scroll through the document — a common occurrence — because even that identical physical context is impermanent, as the words rise and fall on the screen.¹³

Accordingly, when reading digital documents, readers and users must work harder to understand the content and organization of the information in the brief. This requirement creates a problem, of course: We can’t be sure that our readers will do the extra work. So what should we do?

Alas, we cannot force hard copies into the hands of judges and clerks; digital documents are here to stay. Instead of getting rid of digital documents, we must use writing and presentation techniques that compensate for the hard-copy benefits that are lost in digital documents.¹⁴

First, use enumeration and headings to provide digital readers with finding tools and signals. As you know from your own behavior as a digital researcher, digital readers may skip around in a document and have little idea where they have landed most recently. Thus, you may want to use the labels on your headings to let them know where they are. Traditional roman/alphabet labels may not be helpful:

HEADING LABEL THAT IS LESS EFFECTIVE FOR DIGITAL READER B. Plaintiff’s complaint has not alleged sufficient facts as to the causation element.

This label tells the reader only that he or she has landed at “B,” presumably the second subpart of some argument within the document. The label does not reveal, however, whether that “B” is a subpart of argument “I,” argument “II,” or even argument “IX.” By using scientific numbering, however,¹⁵ the writer can signal the argument’s approximate location:

HEADING LABEL THAT IS MORE EFFECTIVE FOR DIGITAL READER 3.2.

In addition to effective enumeration, of course, you should use effective substantive headings, following the guidelines in Chapter Nine. Make sure you use language that will signal both the issue under discussion and your position on the issue. Likewise, use boldfaced or other contrasting type that will allow users to see your headings as they scroll or scan through your document.

Second, use the “template,” phrases-that-pay, and Kevin Bacon connections to provide digital readers with contextual and organizational cues. As you know from reading this chapter, headings are one part of a symbolic “template” that you can install to help provide context for your reader. Headings, topic sentences, and roadmap paragraphs can all provide context and finding tools for digital readers. As noted above, eye-tracking research shows that readers scan the first parts of pages and paragraphs to look for information that is useful to them.¹⁶You should therefore exploit those locations.

As you know from your own research behaviors, readers often use search terms to lead them to the most significant part of documents. Be sure to use phrases-that-pay appropriately, and to do so in a way that promotes searching and finding. Furthermore, because new headings may draw a digital reader’s focus in the same way that the top of a new page does, be sure to place context cues in these high-focus locations. For example, by making explicit Kevin Bacon connections at the beginning of a new section, you can make it easier for the digital reader to understand how the different pieces of your argument fit together.

Finally, be thoughtful in how you choose and use your software. Specific recommendations as to software are beyond the scope of this book (and the expertise of this author).

It is tempting to take advantage of all of the bells and whistles that your software offers, but be mindful of the impact of your decisions. Hot links can be useful, for example, but they can also take the reader away from your document and into another document. If that document also has hot links, the reader may soon be many documents away from your well-crafted argument. If you believe that the court would benefit from hot links, it may be better to include them in a table of authorities or an appendix rather than in the body of the argument itself.

Thankfully, hard-copy readers have many of the finding and comprehension needs that digital readers do. Although sensing structure and making connections may be easier for hard-copy readers than for digital readers, you will likely enhance the comprehension of all readers by using these user-friendly techniques.