After reading Daniel Sockwell’s article about writing legal briefs that you expect a judge to read on an iPad, Scott Greenfield is a little bummed out over the suggestion to eliminate footnotes:
Initially, Sockwell’s point about eliminating footnotes is a critical one, not just because they’re hard to read on a tablet but because that means footnotes won’t be there to be used. I love footnotes in briefs. They are the perfect tool to make mini-arguments, small off-shoots of main points that may not merit a point heading of their own but carry weight in the consideration of the main point.
Scott also brings up an important practical point:
There is one problem arising from the mixed brief submission, where a court requires paper briefs as well as digital briefs. The two can’t be different, and yet the two will be read in very different ways that require them to be different. Sockwell makes the point that an advocate needs to know how a particular judge reads a brief, and tailor a brief to her ways. That may be fine when the brief goes to a trial judge, but won’t necessarily help when it goes to an appellate panel. You can’t please them all.
I have good news for Scott: Technology has the solution!
If courts insist on only one version of the document, but you want it readable in two different formats, the solution is an intermediate electronic markup language which specifies content rather than format. You’ll submit this intermediate document to the court clerk, who will use it to prepare the judge’s reading copy in whatever form the judge prefers. For example, Scott could create his mini-argument with the appropriate markup, submit his brief to the clerk, and the clerk’s computer could render his mini-argument as a footnote on the printed copy and on the iPad perhaps it could generate a nice fly-out sidebar with an elegant easing algorithm.
How do we know that a content-oriented intermediate markup language is the best solution? Simple. We know it will work because software engineers have already implemented dozens, if not hundreds, of content-oriented intermediate markup languages, such as RUNOFF, troff, Tex, SGML, HTML, BBcode, Markdown, MediaWiki, PmWiki, AsciiDoc, Mobipocket, EPUB, OpenXPS, and PDF. With so many successes already, how can one more possibly fail?
I suspect that tech-savy clerks at several of the more innovative courts will lead the way by specifying their own preferred content-oriented intermediate markup languages, probably using a variant of an existing one with a few court-specific extensions. Once that happens, NIST should react with their customary efficiency and issue a strawman process proposal for establishing a steering committee to develop a national standard for a legal brief submission markup language.
In less than half a decade this should result in an initial draft proposal, after which court systems will begin the process of retiring their prior legacy brief submission formats, except of course for those court systems that want to wait for the version 2.0 draft to stabilize because it adds some exciting new features that didn’t make it into the 1.0 version, and because it will clear up some ambiguities and completely replace the system for handling string citations with one that’s more comprehensive.
Don’t worry if all this sounds confusing, because legal software vendors will be happy to provide a markup translation solutions that will convert between many of the most widely-adopted brief-submission content-oriented intermediate markup languages. Most lawyers shouldn’t need to purchase more than two or three different programs to cover all the jurisdictions they practice in, although many larger firms are expected to prefer cloud-based subscription solutions.
Welcome to the digital revolution! The future is going to be awesome!