When web designers mention the term “usability”, they are referring to a website’s ability to effectively convey information to an online visitor and hopefully convert that visitor into a paying customer.
In a highly competitive online environment, e-commerce websites live and die by their ability to accomplish this feat. A poorly designed website will not convince and convert.
The importance of digital design and writing for the web is only gaining momentum among litigants. This is yet another area where a tradition-bound profession has been dragged into the digital future by the COVID-19 pandemic. Lawyers moving to virtual hearings and remote depositions are acutely aware of the need to master online presentation techniques – their way of appearing on screen, how they interact with deposition witnesses and opposing counselas well as the need to maintain the integrity of a remote repository which takes place with few participants in the same room together.
Less attention was paid to the words on screen. However, just like a website, legal documents on a computer screen – whether they are transcripts of depositions, complaints, motions, appeal briefs or discovery documents – are all:
- consumed in digital format
- by busy readers
- via an Internet connection on a digital device.
Litigants might well wonder if they can learn valuable lessons from web designers and if the traditional approaches to legal writing that were developed in the ink-on-paper age continue to be effective in the digital age.
Design of documents for litigants
Website usability experts closely study how people read documents online. They learned that not all parts of the screen receive the same attention. Most online readers tend to skim through online pages in an “F pattern” or “layer cake pattern”, trying to glean the most information in the least amount of time. Information may receive little attention, or be missed altogether, just because it was displayed on the right side of the computer screen.
Font selection (a specific weight, style and size of a font) and white space on the page are also considered extremely influential attributes in a digital document. Sans serif fonts (i.e. fonts without short lines or ornamentation), such as Arial, Helvetica, and Open Sans, are widely considered the most readable fonts for online documents. On the other hand, Courier – a very popular typewriter typeface within the legal profession – is rarely recommended for online documents.
White space is another digital design element. In a digital document, white space conveys a sense of order and organization, it increases readability, and allows the author to draw attention to key pieces of information by surrounding that information with white space. White space highlights the words it surrounds.
Color is a design element that can contribute to the success of a digital document. Studies have shown that blue is strongly associated with trust and security, while brown and red have negative connotations that could make them unsuitable for business communications.
Finally, the judicious use of hyperlinks and images in a digital document is widely recognized to give a more readable and convincing presentation.
Litigants, look beyond the words
Still not convinced?
According this account of the New York Bar Association’s “Legal Writing With Lebovits” program, the job of the legal writer has changed dramatically as a result of the COVID-19 pandemic.
New York Supreme Court Justice Gerald Lebovits says the prevalence of virtual hearings and remote depositions has put stress on effective legal writing. Lawyers must master the art of drafting documents that will be read on a computer screen, he said.
Prior to the pandemic, the legal profession’s appreciation that “digital is different” was slowly growing. Books on legal writing rarely touch on the subject.
Major books on legal writing, such as Bryan Garner’s Legal writing in plain English (University of Chicago Press, 2013) and Tom Goldstein and Jethro Lieberman The lawyer’s guide to good writing (University of California Press, 2016), approach legal writing from the dual perspectives of grammar and rhetoric. For the most part, they make little distinction between a document to be consumed online and a traditional document printed in ink on paper.
Their advice, in a nutshell, is for legal writers to:
- Organize thoughtfully
- Summarize key points early
- Avoid jargon
- Omit unnecessary words
- Use active voice
- Minimize the use of qualifiers and conjunctions
That’s good advice for print media advocates, but for effective digital advocacy, it might not be enough. Litigants may need to approach a digital document as if it were an entirely different animal – not simply a printed document transmitted digitally.
Some might say that the late adoption of digital design has its roots in the legal profession’s early preference for documents presented in portable document format (PDF). Today, almost all electronic filing systems require submissions in PDF format. And why is that? Largely because the dominant feature of the PDF format is its ability to render a digital document in a way that closely mimics the appearance of a printed page.
But a printed page is a straitjacket, not an ideal.
PDF documents cannot be reformatted for different screen sizes, and they are difficult to highlight and annotate. Documents in PDF format offer familiarity at the expense of usability. Imagine Henry Ford insisting that the Model T have stirrups and leather reins for steering because that was what his customers knew.
What does a usable legal document look like?
If a lawyer were to approach a legal document the same way a web designer would approach a page on a website, they would write that document to have the following attributes:
Assuming local court rules leave discretion in selecting fonts, she would choose a sans serif font to make her words as readable as possible. It would give the reader the option to resize the font and reformat the page so that the pleading or brief can be read on a desktop computer, tablet or mobile phone. It would also format the document to allow screen reader technologies to recite the text.
She would make sure to use white space to make the organizational scheme of the document immediately apparent to the reader. Subtitles would be spread throughout the document, in order to promote the possibility of digitization.
She would underline short sentences.
And short paragraphs.
she would use white space (and other design elements) to draw attention to the parts of the document that are most important to its case.
If she suspects that her reader is likely to approach the document with a F-pattern Where layer cake patternit will format the document in such a way as to discourage the reader from skipping over its most important arguments.
Site usability consultancy Nielsen Norman Group says the habits of F-shaped scanners are bad for business. Poorly formatted text will be ignored by many readers, they say:
[I]This means that users can ignore important content just because it appears on the right side of the page. Good web formatting reduces the impact of F-scanning. If your pages contain large chunks of unformatted text, people will scan it in an F-shape.
Front-loading important information and liberal use of subtitles are good ways to defeat F-shaped scanners.
Important Calls to Action
Online marketers use a prominent call to action so the reader knows exactly what to do next. It can be a “buy” button or an invitation to download an e-book.
For litigants, the “call to action” is the remedy sought by the pleading. This is the main takeaway that the litigator wants to leave to the judge or jury. A good e-commerce marketer wouldn’t forget to include a call to action or not highlight it on the page. Or put it at the very bottom of the page because some readers may never get that far. Our digitally savvy lawyer doesn’t make those mistakes either.
Maybe… Images and color
Few pleadings use color or images, either to support their legal arguments or to improve readability. However, this may be more a matter of tradition than lack of usefulness. There’s work here for creative lawyers looking to maximize the impact of their digital submissions. After all, one of the cornerstones of effective writing is “show, don’t tell.” Our attorney would make sure to decipher the local court rules and then work through them to add all the digital design elements allowed to craft a compelling and readable argument as to why his client is entitled to redress.
Digital presentation: a new advocacy skill to master
We’re not suggesting that legal complaints should trumpet “remedy requested” in a big call-to-action button, or that complex legal arguments be distilled into bite-sized chunks. After all, the reader of an appeal brief or deposition transcript is a more engaged reader than the average website visitor. There is little danger of a judge or clerk wandering away from a factum before reaching the end. (Where is he?)
But we suggest that, in this new digital environment, litigants pay at least as much attention to the arrangement of words as they do for word selection in their legal documents. Effective advocacy today is more than words on a page.