Appellate advocacy in the 21st century

By Steve Thorpe Legal News Robert Dubose argues that it's as important to know how your legal brief is being read as who is reading it. "The biggest change to law practice in our lifetime has been the switch from paper to screens," he says. Dubose, of Alexander Dubose & Townsend LLP of Houston, Texas, delivered the Dewitt C. Holbrook Memorial Fund Luncheon speech on "Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World" on Thursday as part of the Michigan Appellate Bench Bar Conference. Dubose urged his audience to modify their writing styles to take into account major changes in the way we read, especially the rapid change from paper to electronic screen. This year's program called "Appellate Advocacy in the 21st Century-Bench and Bar Working Together to Achieve Justice Under the Law" was held April 24-26 at the Inn of St. John's in Plymouth. The conference is held every three years. Conference sponsors included the Michigan Appellate Bench Bar Conference Foundation, the State Bar of Michigan Appellate Practice Section, the Michigan Supreme Court and the Michigan Court of Appeals. The welcome session featured remarks from Chief Justice Robert P. Young, Chief Judge William B. Murphy and Foundation Co-Chair Mary Massaron Ross. Dubose repeatedly recommended that, when in doubt, look to the web for guidance. Usability experts are constantly fine tuning web presentations for the new reality of how we read today. So what might that "brief of the future" look like? "If your audience is reading on screens, and in Michigan it sounds like a lot of your appellate audience is, write for the screen," Dubose said. "You want to design legal documents so that they look like a web page. Short text, focus on headings and bookmarks over to the side. Summaries are really critical. Persuade your reader with specifics. The real things that the case turns on. Sometimes they're facts, sometimes they're the choice between two legal rules and why your choice is better than the other side." Dubose also had high praise for that most minimalist of all web presences, the Google home page. "Google is our model for what we want an appellate brief to be," he said. "We can't have a brief that looks quite like the Google home page, but we want it to be as easy to get information from our brief as quickly as possible." Readers today not only want their information painlessly, they want it fast, which often amounts to the same thing. "Readers have come to expect quick answers,'" Dubose said. "When readers read your brief, they want to get their answers as quickly from you as they do from Westlaw. And it's not just lawyers, it's the whole society." Dubose also cautioned his listeners about drawing strong conclusions from one answer in a survey. "A recent survey asked judges what they thought of block quotes, and most of them said 'that's fine.' The next question was 'Do you read block quotes?' and most of the judges said, 'No.' Dubose also reminded his audience that they were fighting to be noticed in a virtual avalanche competing for their audience's attention. "It's been said that 'Getting information from the Internet is like taking a drink from a fire hydrant,'" he said. "What this means for our reader is that they have a choice. When they're looking at their computer screen with multiple windows open and their email open and they're instant messaging with their kids and there are sports scores displayed and a couple different briefs up. They have a lot of different things to choose and they don't have to read your brief. Reading a brief has to be a choice." He also recounted a personal experience that illustrated how far we've moved from the old paper world and how dependent we've become on the Internet for work. "I live in Houston and I learned (about this dependence) the hard way when we had a hurricane five years ago," Dubose said. "We live quite a bit inland, but everybody lost power. Eventually the power came back on, but our Internet connection did not. So I went to my office and basically all I could do was organize my desk. The next day I heard a rumor that there was a mall many miles away that had free wi-fi that was working in their food court. I ran over with my laptop and I was able to work all day. The Internet has become far more important than our physical office for doing work." Sandra Schultz Mengel was the 2013 recipient of the organization's Lifetime Achievement Award, given to those who have made a significant contribution to the profession as a member of the Appellate Practice Section. Mengel was a member of the Michigan Court of Appeals staff for 32 years until her retirement in 2011. She served as a research attorney, judicial law clerk and as a supervising attorney. When she retired, Mengel had served as Chief Clerk for 10 years. Mengel was also part of the State Bar of Michigan's Judicial Crossroads Task Force committee on technology. Published: Thu, May 16, 2013

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