Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

E-Filing and the Paperless Law Office: Legal Writing for the Rewired Brain

There is imposed on every attorney the duty of competence and to be conversant with the ever- evolving changes in both the legal world and outside of it that may impact the practice of law. This article focuses on the ascendancy of the computer and the effects of judges and attorneys communicating by the computer screen and not by paper. News reports highlight that many courts now require efiling for their records and that law firms, like other businesses, are going paperless. Studies indicate that reading from a computer screen affects the reader’s speed and methodology of reading. The competent practice of law requires that attorneys be aware of this dynamic and the methods available to communicate persuasively in this Internet age.

The duty of competence is founded on Business and Professions Code section 6067. It requires that every lawyer shall "faithfully discharge the duties of an attorney-at-law to the best of his knowledge and ability." Further, California Rules of Professional Conduct Rule 3-110(A) provides that “a member shall not intentionally, recklessly, or repeatedly fail to perform legal services with confidence." Finally, ABA Model Rule 1.1 mandates that “a lawyer shall provide competent representation to a client...."

The competent lawyer is, of course, aware of the importance of succinct, well-organized and thoroughly edited communications with the court—as well as with other attorneys and clients. We are all aware that in San Diego our independent calendar judges have caseloads of from 800 to 1000 cases per department; that the preparation of law and motion matters for hearing most often has to be done in the non-trial time of a judge; and that judges very often can dedicate very little time to reading our carefully prepared and often times verbose motions.

We are now in the era where oftentimes our papers are only read on a computer screen.

Recent studies conclude that reading on a computer screen is significantly different than reading a hard copy. Those studies confirm the anecdotal stories often personal to all of us, which are that when we read on a computer screen we are actually skimming and not reading; we have difficulty reading long texts; we strain to maintain our concentration; and we often miss material. (Those studies include web - usability research.)

Web-usability research and other studies conclude that screen reading results in the following:

  1. The speed of reading on a computer screen versus hardcopy is reduced up to 30%.
  2. Screen readers typically do not read word by word, line by line but rather scan the material as is shown by eye tracking studies.
  3. Screen readers also do not typically read in a linear fashion and the eyes tend to jump around the page.
  4. Not too surprisingly, screen readers are impatient and want information quickly. The computer is full of distractions as are our lives.
  5. A screen reader does not want to have to work to understand what is being conveyed. This is not a sign that the reader is unintelligent but rather a sign the reader is busy and impatient.

So what does a competent lawyer do to deal with the screen reader phenomena?

We have to change our writing style. Many of the lessons from such classics as the Elements of Style by E. B. White still apply. Keep it simple. Write short sentences. Edit, edit, edit.

Specific to the screen reader, the web usability studies make various suggestions. They include:

  1. Enable skimming. This is done through utilizing headings to highlight arguments, short summaries to introduce the overall document as well as specific arguments, and topic sentences for every paragraph. Bullet points and numbered lists also make a skimmer’s life easier.
  2. Omit (needless) words. This admonition has been around since before the Elements of Style first appeared in 1927. According to various studies, shortening the text cultivates more reader interest and time dedicated to reading the material. Further, that  gives the brain a chance to rest between concepts.
  3. Don't force your readers to think. This is not meant to be condescending, but rather to make the writing flow and not force the reader to have to reread a sentence or a paragraph.
  4. Make it simple. This concept suggests the wisdom of short sentences, short paragraphs, and easily read terminology.
  5. Use white space. There is nothing more disheartening than to see a page full of type. Paragraphs should be short; the material should be double spaced; and triple spacing should be used between paragraphs as an oasis for the eyes.
  6. Put your most important point at the top left of the page. The referenced studies highlight the fact that the screen reader will read the top part of the page and as the reader approaches the bottom of the page will skim with a vengeance.

The competent lawyer knows his or her audience and will necessarily understand that the dynamics now facing judges include not just scarce resources but also the fact that law clerks and judges may be screen readers.

– Charles Berwanger

Some concepts regarding screen reading are from Robert B. Dubose, Esquire’s article “Legal Writing for the Rewired Brain” (2010)

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**