Title Don't Print! Legal Writing & Reading in The Digital Age...2015/08/01  · Don't...

Title: Don't Print! Legal Writing & Reading in The

Digital Age

Date: March 17, 2016

Time: 11:00 AM to 12:15 PM

Moderator

Irene Oria

Special Counsel

Stroock & Stroock & Lavan LLP

Miami, FL

Panelists

Cindy Duque Bonilla

Counsel

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC

Orlando, FL

Eric Magnuson

Partner, Robins Kaplan LLP

Former Chief Justice of the Minnesota Supreme Court

St. Paul, MN

Raoul G. Cantero

Partner, White & Case LLP

Former Justice, Florida Supreme Court

Miami, FL

Edward J. Loya, Jr.

Counsel

Venable LLP

Los Angeles, CA

Don't Print! Legal Writing & Reading in The Digital Age

March 16-19, 2016 Caesars Palace Hotel & Casino

Las Vegas, NV

Moderator: Irene Oria, Esq. – Special Counsel, Stroock & Stroock & Lavan LLP (Miami, FL)

Panelists:

Eric J. Magnuson, Esq. – Partner, Robins Kaplan LLP; Former Chief Justice, Minnesota Supreme Court (Minneapolis, MN) Raoul G. Cantero, III, Esq. – Partner, White & Case LLP; Former Justice, Florida Supreme Court (Miami, FL)

Cindy Duque Bonilla, Esq. – Partner of Counsel, Weinberg, Wheeler, Hudgins, Gunn & Dial LLC (Orlando, FL) Edward J. Loya, Esq. – Counsel, Venable LLP (Los Angeles, CA)

2016 Corporate Counsel Conference

WHY TECHNOLOGY?

Primary Speaker:

Eric J. Magnuson, Esq. Partner, Robins Kaplan LLP

Former Chief Justice, Minnesota Supreme Court Minneapolis, MN

HOW COURTS ARE DEALING WITH TECHNOLOGY, GENERALLY

Primary Speaker:

Eric J. Magnuson, Esq. Partner, Robins Kaplan LLP

Former Chief Justice, Minnesota Supreme Court Minneapolis, MN

Minnesota’s eCourtMN initiative

Annual Report

E-Filing in State Appellate Courts: An Appraisal

National Conference of Appellate Court Clerks

ABA Council of Appellate Lawyers E-Briefs Project

ABA Council of Appellate Lawyers - Rules Committee Overview

25 Years Later, PACER, Electronic

Filing Continue to Change Courts

Access to Court Opinions Expands

Single login across

all courts where

lawyer is registered

Customize screens

Display specific

information

Emphasize remote

access

• For Lawyers

• For Judges

EXAMPLE: FLORIDA COURT TECHNICAL ADVANCES

Primary Speakers:

RAOUL G. CANTERO, ESQ.

Former Justice, Florida Supreme Court

Partner, White & Case LLP – Miami, FL

IRENE ORIA, ESQ.

Special Counsel, Stroock & Stroock & Lavan LLP – Miami, FL

Court Technology in Florida

• Through the integration of state-of-the-art technologies, Florida’s court system is recognized as one of the leaders in the country.

• Florida’s courts have made great advances in the use of technology to improve and enhance the efficiency, effectiveness and timeliness of those processes which are critical to the management of information technologies. Opportunities created by emerging technologies have provided the impetus for the judiciary to meet the multitude of challenges faced by our court system with a view towards improving the administration of justice and enhancing public access and service.

• Statewide Electronic Filing Court Records Portal (ePortal) & eRecord

• Online Docketing & Online Calendaring – Trial & Appellate Courts

• Broadcasts, Webcasts & Oral Argument Archives

• Florida Appellate Courts Technology Solutions (eFACTS) Project, Judicial Inquiry System & Court Application Processing System (CAPS)

• Due Process Capabilities, Official Court Blogs & Other Technical Advances

• How Florida Appellate Judges Read

Current Projects

eFiling and eService through ePortal

• The Florida State Courts System had been working on automating the process of filing court documents for many years. In 2008, the Legislature mandated a transition to the e-filing of court records. On June 21, 2012, the Supreme Court issued opinions approving recommendations to require e-filing by attorneys and e-service, through a phased in implementation.

• Service by e-mail is mandatory as of September 1, 2012 for trial courts in civil, probate, small claims & family cases and also all appellate cases – and as of October 1, 2013 in criminal, traffic and juvenile matters.

• As of October 1, 2013, e-filing is mandatory in all Florida trial courts. The eFiling portal website provides eFiling and eRecording capability to users (including non-attorneys) with a single statewide login.

• Mandatory statewide electronic record on appeal is effective October 1, 2015; only PDF files of the trial record and trial transcript are transmitted to appellate court.

• With electronic filing now the norm in

Florida courts, the implementation of mandatory electronic records on appeal is one of necessary steps in the ongoing efforts to provide the public with electronic access to non-confidential court records.

eRecord

• Interactive online case dockets allow you to search for cases by case name, case number and other criteria.

• In some courts/counties, interactive online calendars allow you to schedule hearings online.

Online Dockets and Online Calendaring in Trial & Appellate Courts

• The Florida Supreme Court has broadcast and webcast all of its oral arguments since 1997 through a partnership with Florida State University’s Broadcast Center. Web casting is also available in some other appellate courts such as the Florida First District Court of Appeal.

• Florida Supreme Court oral argument archives are available online by date of oral argument.

Broadcasts, Webcasts & Oral Argument Archives

• The Florida Supreme Court has e-voting – where justices vote on circulating opinions online. All justices receive notice of the vote and can see how many justices have voted on circulating opinions.

Florida Supreme Court “E-Voting”

The Florida Supreme Court is participating in the pilot FACTS Project to accommodate electronic documents and replace the existing appellate courts case management systems. eFACTS will offer new and enhanced user efficiencies, including: electronic document management, electronic workflows, electronic voting, remote access via a secured web application, tracking of administrative matters, assignment and working document tracking, calendaring, on-line docket and secured access to case information. eFACTS will also accommodate electronic filing via the ePortal.

Florida Appellate Courts Technology Solutions (eFACTS) Project

• The Judicial Inquiry System (JIS) provides statewide information to courts on criminal cases. This technology initiative offers the Judiciary and other criminal justice entities access to a streamlined dashboard in which a user may query multiple data sources through a single point of entry.

• There is a need for equivalent information/similar capabilities in civil

and family cases which will be provided in the future through the Integrated Trial Court Adjudicatory System (ITCAS) project.

Judicial Inquiry System

• This is a computer application /fully-automated trial court case management system designed for in-court and in-chambers use which facilitates work on cases from any location and across many devices and data sources. It provides judges with rapid and reliable access to case information; provides access to and use of case files and other data in managing cases, scheduling and conducting hearings, adjudicating disputes, and recording and reporting judicial activity; and allows judges to prepare, electronically sign, file, and serve orders. While project is already underway, the need is to complete a statewide rollout across all counties and circuits, establish data and interface standards for improved interoperability, and improve data access from clerks and other court stakeholders.

Court Application Processing System (CAPS)

• Some courts have implemented due process capabilities (remote interpreters, digital audio/video recording, to include the expansion of digital court reporting equipment in necessary courtrooms and hearing rooms not already outfitted with the technology) over the last several years. The need is to complete the rollouts statewide and provide life cycle funding for maintenance and replacement.

Due Process Capabilities

• Some courts have created official court blogs on the internet that are maintained by the clerk of court’s office. These blogs provide summaries of recent court opinions, lists of cases granted review, schedules and notices of high-profile cases, and upcoming dockets.

Official Court Blogs

•Use of mobile technology such as iPad

•Use of Hyperlinks

Hyperlinked Tables of Contents

Hyperlinks to Legal Authority and the Record

•Use of Bookmarks in Briefs and Appendices

• In some courts, videoconferencing of oral argument to reduce travel time and costs is permitted (Florida First District Court of Appeal in Tallahassee was the first court to allow videoconferencing)

Other Technical Advances

• In a survey conducted in June 2014, Florida’s 68 appellate court judges (61 district court of appeal judges and seven supreme court justices) were asked to indicate the percentage of briefs and other case-related documents they read in paper and electronic media. Thirty-five judges (approximately 52 percent of those surveyed) responded. All but three of the 35 judges indicated that they read at least 50 percent of briefs on a computer or tablet screen. (Of the three who do not read at least 50 percent of briefs electronically, one reads all briefs in paper format; one reads 25 percent of briefs electronically; and the other reads 40 percent of briefs electronically.) All but two of the 35 judges read at least 50 percent of appendices and record documents on a screen.

How Florida Appellate Judges Read

EFFECTIVE ADVOCACY IN A TECHNOLOGICAL WORLD

Primary Speakers:

Cindy Duque Bonilla, Esq. Partner of Counsel

Weinberg, Wheeler, Hudgins, Gunn & Dial LLC Orlando, FL

Edward J. Loya, Esq. Counsel, Venable LLP

Los Angeles, CA

Not superficial; this is advocacy

Of course. Substance is essential.

. . . but presentation matters.

Dressing for Court

Speaking to Courts

SCREEN READING

Primary Speaker:

Edward J. Loya, Esq. Counsel, Venable LLP

Los Angeles, CA

Many appellate judges read on iPads.

Court issuing iPads

“The iPad was a game

changer for me.”

“With it, I can work from

anywhere as long as I

have wifi access.”

Richard C. Wesley Second Circuit Court of Appeals

~2011: Clerks taught

how to use iPad

“Now I use it all the

time!”

“And now, so do many of

my fellow judges . . . .”

Judicial Retreat:

“Judge Lynch and I did a

demonstration”

• mark up PDFs

• memos with hyperlinked

cases

Every Second Circuit order:

– Before retreat = all paper

– After retreat = all PDFs

“[J]udges were . . .

comfortable with PDFs.”

“[W]e immediately

reduced the flow of

paper for a lot of the

court’s motion practice.”

Screen Readers: The Science

• Red areas read by most readers • Yellow areas read by many readers

• Blue areas read by few readers • Grey areas read by none

The F-Pattern

• Look for headings and summaries of content

• Read the first paragraph more thoroughly than the rest of the text

• Read the first sentence of a paragraph, but skim the rest of the paragraph

• Look for structural cures down the left side of the page

Screen Readers

More exhausting

Screen Readers

Have less attention and want information quickly

Screen Readers

Do not want to work hard to get information

Visible Structure

• Frequent headings • Outlines • Topic sentences • Lists • Bullets

SCREEN WRITING

Primary Speaker:

Cindy Duque Bonilla, Esq. Partner of Counsel

Weinberg, Wheeler, Hudgins, Gunn & Dial LLC Orlando, FL

Writing for Courts

Writing for Paper

Writing for Screens

“I can’t read on screens!”

There’s a reason

. . . that’s less true today.

Paper = 300-600 ppi (points per inch)

CRT = 60 ppi

LCD = 110 ppi

Over Time: Better PPI

Better Fonts

Remember Courier?

Condensed = more text per page

Times New Roman (1932)

=

Default in 1992

=

Default in 2007

But don’t most courts require Times New Roman?

Fed. R. App. P. 32(a) (5) Typeface. . . .

a. A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions.

7th Cir. Typography Studies have shown that long passages of serif type are easier to read and comprehend than long passages of sans-serif type. The rule accordingly limits the principal sections of submissions to serif type, although sans-serif type may be used in headings and captions.

Rules require serifs

Fed. R. App. P. 32(a)

(5) Typeface. . .

a. A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions.

Not choosing (keeping the default) is a choice.

Font Choice

Font Options - Serif Font Options – Serif

[this is 14 pt, text is 12 pt, title and ISSUE: fonts are bold]

Baskerville Old Face (Magnuson)

ISSUE: fonts (Sample italics and bold italics)

Century (U.S. S. Ct., SG)

ISSUE: fonts (Sample italics and bold italics)

Book Antiqua (above title) ISSUE: fonts (Sample italics and bold italics)

Bookman Old Style (Murray)

ISSUE: fonts (Sample italics and bold italics)

Century Schoolbook (Schneider)

ISSUE: fonts (Sample italics and bold italics)

Cambria (Microsoft ClearType) ISSUE: fonts (Sample italics and bold italics)

Constantia (Microsoft ClearType) ISSUE: fonts (Sample italics and bold italics)

Times New Roman (Traditional)

ISSUE: fonts (Sample italics and bold italics)

Arial (above sub title)

ISSUE: fonts (Sample italics and bold italics)

Calibri (Microsoft ClearType) ISSUE: fonts (Sample italics and bold italics)

Candara (Microsoft ClearType) ISSUE: fonts (Sample italics and bold italics)

Paper = Serif

(e.g., Book Antiqua)

Screens = Sans Serif

(e.g., Arial)

Conventional Wisdom

But we don’t know

how judges will read

briefs — paper or

screens.

What can we do?

There’s a font [set] and

technology for that.

Forbes Article Dec. 2013

“We believed that more and

more documents would

never be printed but would

solely be consumed on a

digital device.” Joe Friend

Microsoft

Forbes Article Dec. 2013

“To support digital

consumption, the new fonts

were created to improve

screen readability. They

[Microsoft employees] do

this via a technology called

ClearType.”

Joe Friend

Microsoft

No ClearType ClearType

LCDs - ClearType

Lucas de Groot

Serif Sans Serif

Fonts Designed for ClearType

Lucas de Groot

ClearType Fonts?

Serif Sans Serif

Fed. R. App. P. 32(a)(5) A proportionally spaced face must include serifs

Hear, All Ye People; Hearken, O Earth!

Among a sampling of 40,000

readers, Baskerville, a 250-year-

old serif , statistically more likely

to influence the minds of readers

than Computer Modern, Georgia, Helvetica, Comic Sans or Trebuchet. John Baskerville

Typography: Don’t take our word for it.

Ask Professionals

Times New Roman vs. better fonts

Spacing

Supreme Court R. 33: “every document . . . double spaced”

Fed. R. App. P. 32(a)(4): “text must be double-spaced”

Minn. L. R. 7.1(f): “typewritten and double-spaced”

C.D. Cal. L.R. 11-3.2: “The lines on each page shall be double-spaced”

“Double spaced”

Word “double space” = 2.3x

12 pt font = 30 pt spacing

True “double space” = 2.0x

12 pt font = 24 pt spacing

2x 12 pt = 24 pt

2x 12 pt ≠ 30 pt

“Double Space”

30pt Spacing True double space

“Double space” = 2.0x

12 pt font = 24 pt spacing

“Double space” = 2.33x

12 pt font = 30 pt spacing

What do courts mean?

More (readable) lines per page are better.

Tablets are smaller.

“For most text, the optimal line spacing is between 120% and 145% of the point size.”

14pt font = 17-20pt spacing

Line Spacing: 1.2x to 1.45x

THINKING OUTSIDE THE BOX: VISUAL IMPACT OF BRIEFS

Primary Speaker:

Eric J. Magnuson, Esq. Partner, Robins Kaplan LLP

Former Chief Justice, Minnesota Supreme Court Minneapolis, MN