The Judicial Brain (Part II)


At long last, let us finish up with some of what I learned at the last AAAL conference.

There was a fascinating session on how we absorb text on line versus in print.  This session was similar to a previous session in another conference upon which I blogged previously, but with more information, and, since it is later in time, an even clearer indication that many judges and most clerks are now reading briefs on their ipads and computers, making this issue even more critical in how we present our arguments.

Basically, the history of reading has undergone three phases.  In the beginning, with writing on tablets (stone not ipad) etc., there were no spaces in between words and other quirks, because text was absorbed aurally – there would be group sessions, where someone read aloud and everyone listened.  Then the monks came, in their little cells, and they all read on their own, requiring spaces and other changes to facilitate reading versus declaiming.  It is at this point that reading becomes studying.  (Some academics will say that this is when the concept of the individual came into being, too).  This phase of reading lasted until our current times and the world computers.  Now the reader does not study.  Rather, he or she information gathers.  People's brains are being re-wired to do this, jumping around and seeking instant gratification from hyperlink to hyperlink.  There are lots of interesting philosophical conjectures as to where this development is heading (some say we are now moving toward a collective consciousness, similar to the  "oonesphere" that Teilhard de Chardin predicted many decades ago would be man's next stage of evolution.) 

Given more limited subject matter of this blog than the future of mankind, however, let us concentrate on the immediate ramifications of this transition from studying to information gathering in briefing.  Put simply: 

  • no more long blocks of text! If you must include a long quote, have the first sentence before the block summarize what the quote is going to say, because the reader's brain will not be absorbing the quote itself.
  • Put sub-headings everywhere!
  • Forget the text at the bottom right hand of your page (except a heading) – no one is absorbing that. 

These rules apply not only because of how are brains work (they showed us little pictures of this, with hot spots lit up), but because everyone now has zero attention-spans and gets interrupted constantly with emails.  The headings in particular are critical to make your point in this world of herky jerky reading and distractions.  Also:

  • Keep as much white on the page as possible – the less that appears on a screen, the more the synapses are absorbing what is there.
  • When the screen is backlit (i.e. everything but a kindle), the brain will fatigue faster, so be short and snappy.
  • Book mark everything!
  • Summarize everywhere!  Pithy short paragraphs!
  • Show the bones of your argument – you must allow skimming, because that's what's going to happen, even if the reader doesn't realize he or she is doing it.  You must telegraph the structure of your argument, using neon signs.
  • Chunk your information – use bullet points, or (1), (2) (3).
  • Use visuals in your brief – graphs, charts and bars.  Say things with pictures when you can.
  • Follow conventions, no strange fonts, no all caps and no capitalization of each word in a heading – make headings read like a sentence, with one capital at the beginning.

The next session of the conference moved onto the question of intuition – how judges use it, and how should it impact what we say.  The keys here are to understand your reader's values, and present a story in which you show, not tell, understanding and using those values.  The idea is to connect with the reader's capacity to empathize, but this can't be a clunky overture for sympathy.  You need to identify universal core values that drive civic decisionmaking (cure/harm; liberty/oppression; fairness/cheating; loyalty/betrayal), and have those themes reflected (subtly) in your narrative.  Also (see how I"m using bullets?):

  • A simple argument has an advantage, because we think that simple is likely right – clear and following rules is trustworthy. 
  • The first argument must be your strongest, because otherwise, the reader doesn't trust you on the rest.  First impressions are everything.  Judges, one of the judges speaking candidly said, judge – and somethinges that means they get an initial impression very quickly into a brief.
  • You need to work to avoid the knee jerk bad impression.  If you have a lousy client, then you your client needs to become the worthy legal principle you are espousing.  You want the judge to feel good about ruling in your favor, consistent with shared values.   

That's it for today.  Upcoming entries will include a summary of Judge Lipez's article in the Spring 2013 Journal of Appellate Practice and Process.   I know it's not exactly spring – brr – but this issue just came out.  Sometimes the world of appellate law still moves at a slower pace.