When website designers mention the term “usability,” they’re referring to a website’s ability to efficiently 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 based on 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 are just now gaining traction among litigators. It’s yet another area where a tradition-bound profession has been dragged into the digital future by the COVID-19 pandemic. Lawyers transitioning to virtual hearings and remote depositions are keenly aware of the need to master online presentation skills – the way they appear on-screen, how they interact with deposition witnesses and opposing counsel, as well as the need to maintain the integrity of a remote deposition that takes place with few participants in the same room together.

Less attention has been paid to the words on the screen. However, just like a website, legal documents on a computer screen — whether they’re deposition transcripts, complaints, motions, appellate briefs, or discovery materials — are all:

• consumed in a digital format
• by busy readers
• through an internet connection on a digital device.

Litigators might well consider whether they can learn valuable lessons from website designers and whether traditional approaches to legal writing that were developed in an ink-on-paper era continue to be effective in this digital age.

Document Design for Litigators

Website usability experts closely study how people read documents online. They’ve learned that not all parts of the screen receive equal attention. Most online readers tend to scan online pages in an “F-pattern” or “layer cake pattern,” attempting to glean the most information in the least amount of time. Information can receive scant attention, or be missed entirely, for no reason other than it was displayed on the right side of the computer screen.

Font selection (a specific weight, style, and size of a typeface) and white space on the page are also believed to be enormously influential attributes in a digital document. Sans serif typefaces (i.e., typefaces that lack short lines or ornamentation), such as Arial, Helvetica, and Open Sans, are widely believed to be the most readable typefaces for online documents. On the other hand, Courier – a typewriterish typeface widely popular 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 legibility, and it enables the writer to call attention to key bits of information by surrounding that information with white space. White space puts a spotlight on 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 browns and reds have negative connotations that might render them unsuitable for professional communications.

Finally, the judicious use of hyperlinks and images in a digital document is widely believed to yield a more readable and convincing presentation.

Litigators, Look Beyond the Words

Still not convinced?

According to this account of the New York Bar Association’s program “Legal Writing With Lebovits,” the legal writer’s job has dramatically changed in the wake of the COVID-19 pandemic.

New York Supreme Court Justice Gerald Lebovits believes that the prevalence of virtual hearings and remote depositions have placed a premium on effective legal writing. Lawyers must master the skill of writing documents that will be read on a computer screen, he said.

Before the pandemic, the legal profession’s appreciation of the fact that “digital is different” was slowly developing. Books on legal writing rarely addressed the topic.

Leading 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’s The Lawyer’s Guide to Writing Well (University of California Press, 2016), address legal writing from the twin perspectives of grammar and rhetoric. For the most part, they make little distinction between a document to be consumed online and a traditional, ink-on-paper printed document.

Their advice, in a nutshell, is for legal writers to:

• Organize thoughtfully
• Summarize key points early
• Shun jargon
• Omit needless words
• Use active voice
• Minimize the use of qualifiers and conjunctions

This is good advice for advocates in print, but for effective digital advocacy, it might not be enough. Litigators may need to approach a digital document as if it was an entirely different animal — not merely a print document transmitted in digital form.

Some might say that the tardy embrace of digital design has its roots in the legal profession’s early preference for documents presented in Portable Document Format (PDF). Today nearly every e-filing system demands submissions in PDF format. And why is that? Largely because the PDF format’s dominant feature is its ability to render a digital document in a way that faithfully mimics the appearance of a printed page.

But a printed page is a straightjacket, not an ideal.

PDF documents can’t be reformatted for varying screen sizes, and they’re difficult to highlight and annotate. PDF-formatted documents provide 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 were familiar with.

What Does a Usable Legal Document Look Like?

If a lawyer were to approach a legal document the same way a website designer would approach a page on a website, she would write that document so that it possessed the following attributes:

Readable Fonts

Assuming local court rules afforded discretion to select fonts, she would select a sans serif font to make her words as legible as possible. She would give the reader the ability to re-size the font and to re-format the page so the pleading or brief could be consumed on a desktop computer, a tablet device, or a mobile phone. She would also format the document in a way that allows screen reader technologies to recite the text.

Scannable Presentation

She would be sure to use white space to make the document’s organizational scheme immediately apparent to the reader. Subheads would be prevalent throughout the document, in order to promote scannability.

She would emphasize short sentences.

And short paragraphs.

She would use white space (and other design elements) to call attention to the parts of the document that are most important to her case.

If she suspects that her reader will likely approach the document with an F-pattern or layer cake pattern, she will format the document in a way that discourages the reader from skipping over her most important arguments.

Website usability consultancy Nielsen Norman Group says that the habits of F-shape scanners are bad for business. Poorly formatted text will be skipped over by many readers, they say:

[I]t means that users may skip important content simply because it appears on the right side of the page. Good web formatting reduces the impact of F-scanning. If your pages have big chunks of unformatted text, people will scan it in an F-shape.

Front-loading important information and using subheadings liberally are good ways to defeat F-shape scanners.

Prominent Calls to Action

E-commerce marketers use a prominent call to action so the reader knows exactly what to do next. It might be a “buy” button or an invitation to download an e-book.

For litigators, the “call to action” is the relief requested by the pleading. It’s the main takeaway the litigator wants to leave with the judge or jury. A good e-commerce marketer would not forget to include a call to action or fail to feature it prominently on the page. Or place it at the very bottom of the page because some readers may never get that far. Our digitally savvy lawyer does not make these mistakes either.

Possibly … Images and Color

Few legal pleadings use color or images, either in service of their legal arguments or in the interest of improving readability. However, that may be more a matter of tradition than lack of utility. There’s work here to do for creative lawyers seeking to maximize the impact of their digital submissions. After all, one of the cornerstones of effective writing is “show, don’t tell.” Our lawyer would be sure to crack open the local court rules and then work within them to add whatever digital design elements are permissible in order to craft a compelling, readable argument why her client is entitled to relief.

Digital Presentation: A New Advocacy Skill to Master

We’re not suggesting that legal complaints should trumpet the “relief requested” in a large call-to-action button, or that complex legal arguments be distilled down to bite-sized chunks. After all, the reader of an appellate brief or deposition transcript is a more committed reader than the average website visitor. There’s little danger that a judge or clerk will click away from a brief before she’s reached the end. (Or is there?)

But we are suggesting that, in this new digital environment, litigators pay at least as much attention to the arrangement of words as they do to the selection of words in their legal documents. Effective advocacy today is more than just words on a page.