Being Digital: Tips from Judges for Creating Electronic Documents They Will Read

Judges use mobile devices (iPhones, iPads, tablets, etc.) to read electronic documents because mobile devices allow work to be done just about anywhere, and because of the ease with which electronic documents can be accessed and navigated by their readers. However, in order for judges to access and review electronic documents with relative ease, it is crucial for attorneys to name, format, and organize electronic documents properly.

I spoke to several state and federal appellate and trial court judges (and their clerks) about how they access and read documents electronically. They offered helpful guidance for lawyers seeking to ensure electronic documents are easy to read and access on mobile devices.

Identify Documents and Communications. Documents filed and sent electronically do not have a cover or title page that appears in an email message or attachment. Therefore, attorneys must “signal” the contents of documents and communications with proper naming.

• Name Documents and Exhibits. Consider a judge opening GoodReader or another software reader in order to review a Motion and multiple exhibits. She does not want to open each exhibit in order to know its contents. Name a document by identifying its subject matter (e.g. “Exhibit A- Affidavit of John Smith”).
• Identify the Case in the Email Subject Line. Likewise, make sure the subject line of an email to a judge lists the full case name and number, and, if possible, the reason for the communication. Judges and clerks have scores of cases, and certainly do not know your particular case the way that you do. One judge with whom I spoke mentioned that when she reviews scores of emails, especially on a mobile device with more limited viewing space, a poorly drafted subject line consumes unnecessary time and attention. In other words, don’t force a judge to waste time figuring out what she is reading.

Make Documents More Readable on a Device. Navigating documents on an electronic screen is different than flipping through a paper document.

• Use footnotes sparingly. As Ray Ward has pointed out, some courts convert all citations in filings (including legal citations and cites to the record) to hyperlinks so that judges can access authority directly by clicking on those case hyperlinks. Placing citations in footnotes forces the reader to scroll down a page in an electronic document in order to access that citation. This can interrupt the flow of reading a document.
• Consider “Scientific Numbering” Rather than Hierarchical Organization. Using “Part I, Section A, Subsection 1” to organize a brief may work in a paper document when the judge can discern that an “A” probably corresponds to “Part I” rather than “Part V.” However, as Professor Volokh has written, when navigating a smaller screen without the benefit of having that “feel,” a judge may be better served by “scientific numbering,” such as “Part 1, Section 1.1, Subsection 1.1.1.”

Optimize Your Documents. Enable the features of electronic documents that make use of these documents attractive.

• Make Documents Searchable. Most jurisdictions not only require that a document be filed in Portable Document Format (PDF), but also that the filed document be text-searchable. Several judges and their clerks pointed out that despite the rule, a number of filed documents were not text-searchable. Similarly, ensure that whenever possible documents are “text-based PDFs” (e.g. saved as a PDF directly from a word processing program) rather than “image-based PDFs” (created by scanning). Although most court rules require text-based PDFs for all documents that can be saved electronically, judges report that some documents are still filed as image-based PDFs. An image-based PDF may have formatting problems, can be difficult to read, and typically requires additional processing (the application of optical character recognition or “OCR”) in order to be searchable.
• Reduce File Size. An unnecessarily large file can be unwieldy to manage on a mobile device, even if it is not too large to be accepted by an electronic court filing system. Creating text-based PDF documents as described above mitigates most if not all excessive PDF size problems. However, if a document must be scanned, determine the lowest acceptable resolution for your scanner (typically 300 dpi), or utilize your PDF program’s “Reduce File Size” feature.
• Connect Your Documents. Moving within a document (from one section to another) or from one document to another (for example, from the body of a brief to a case cited therein) takes nothing more than a mouse click or the press of a finger or a stylus. Consider adding those features to your documents for the benefit of judges, subject to the applicable rules of your jurisdiction: 1) Bookmarks. Some court rules allow the body of a PDF document to contain bookmarks. Bookmarks, as the name suggests, organize a PDF document like exhibit dividers do in a paper document. By clicking on a bookmark in a PDF document, you can “jump” to that section. This feature is especially helpful in larger documents; 2) Hyperlinks. Placing hyperlinks in a document can allow a judge to “jump” to a case, other authority, an exhibit, or perhaps even a page in the record.

Conclusion- Know the Electronic Medium.

Electronic documents offer many advantages over paper documents. However, lawyers must understand how to create and organize their court submissions and communications in order to enable those benefits. Judges will appreciate your efforts.

Resolve to Use Your Device as a Tool- And To Resist Being Tooled by It

Introduction

It’s that time of year: reflection and some soul-searching about what to do differently when we turn over a new leaf on January 1st. Let me offer a modest proposal.

The New Body Part

Everyone reading this post has a smartphone. (Ok, Jared Correia does not have a smartphone, but the rest of you do). And chances are you are not going back to a flip phone, a bag phone, or a rotary dial phone hanging on the wall in your kitchen.

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. — Chief Justice Roberts, Riley v. California.

And I know you have some legitimate uses for your device: very convenient to get things done at any time and wherever you are. Ridiculous amounts of computing power and broadband internet speeds and video and pictures and those GIF memes, emojis, etc., etc. I get it.

But I am pretty sure that none of us planned to be on our devices constantly, at least not in the way we actually use them. Be honest: when you are on your smartphone, how often are you doing productive things? And how often are you doing “unproductive” things intentionally?

I am not being a scold here. No one enjoys playing as much as I do. The question is whether you decided to play, or whether your device just happened to be there and you started swiping and typing.

Are You Using the Device, or Is it Using You?

Bright, shiny devices that are so easily accessible and so full of bells and whistles tend to hijack self-control. And left to our own devices (thanks, I will be here all week), we are likely to create our own little Skinner Boxes- with games, social media sites, and constant checking of all our information streams- all the while not knowing that we’re doing it.

Your attention is being sought and used relentlessly by those doing business in the online world.

“If you’re not paying for something, you’re not the customer; you’re the product being sold”. — Andrew Lewis.

Technology as a Servant, Not as a Master

And when computer tools are using us, we don’t get a chance to determine the ways in which we can use these technologies as part of our “extended mind”- allowing computers to perform tasks that free up our minds to do higher-level thinking. That higher-level thinking is what is going to enable work and workplaces to continue to evolve as automation advances.

In other words, if you are going to have your device as another appendage, then put it to work for you.

Train Your Mind-Try Meditation.

Headspace is just so easy to use (I mean operating the application, not doing the practice). And you can use it anywhere. At anytime. Carving out those quiet moments may create the space for you to see the way your minds works, and how these technologies have commandeered your attention and created the idea that you are so “busy” all the time.

And I certainly am a proponent of getting quiet- whether through meditation, getting outside, exercising, or undertaking other pursuits- and away from devices altogether. But I don’t think it is an all-or-nothing proposition. The key is to have the space and frame of mind to discern what tools to use and when. And to realize who or what is being used.

Give Your Mind a Rest.

See above. In addition, stop keeping all these ideas in your head. Use Evernote or a similar program to memorialize and organize things for later use. If the device is going to be with you at all times, at least take advantage of that fact. As the late great Mitch Hedberg remarked:

I sit at my hotel at night, I think of something that’s funny, then I go get a pen and I write it down. Or if the pen’s too far away, I have to convince myself that what I thought of ain’t funny.

Free Up Your Attention

Quit complaining that you don’t have time unless you have gotten smarter about the way you use your time. Try Boxed. Or Amazon Prime. The idea is to use your time and attention up to do meaningful things. An afternoon of shopping and hauling things around is not meaningful in my world when there are available alternatives.

Feed Your Mind

There has never been a better time to learn new things. And these devices make myriad information sources available to you at any time. Below are just two examples.

Listen to Books. It has never been so easy to have great content literally at your fingertips. Consider a subscription to Audible, and listen while you drive, work out, walk, or otherwise have downtime. If you are looking for recommendations, click here.

Listen to Podcasts. See above. Long-form discussion. Topics directly related to your profession, interests, or entertainment choices. Always available. Pushed directly to your device. You don’t have to do anything but click and listen. Podcasts for lawyers? Click here.

Conclusion

The age of machines (artificial intelligence, machine learning, autonomous vehicles, the blockchain) is only just getting started. The changes in the way we live and work are going to be significant (and arguably have already been significant). In order for humans to figure out where we fit in, we have to have lots of attention and figure out where to spend (pay) it. That means understanding these tools- their benefits and risks- and making sure we use them wisely and effectively.

Reasons to Resist Getting Quiet

“Nothing, to my way of thinking, is a better proof of a well ordered mind than a man’s ability to stop just where he is and pass some time in his own company.” — Seneca

Any reader of this effort (or my various social media streams) knows I am a pretty big proponent of the benefits of the pause.  Or finding some space. Or just getting quiet from time to time.

And I am certainly not the first to undertake to try to describe the benefits of doing so (aware that writing about getting quiet is like dancing about architecture).

But the last thing I would want is for anyone to accept anything blindly (especially something I espouse). And to that end, this post discusses some of the objections a skeptical person might have to practicing mindfulness (noticing), meditation, getting quiet, or other actions that allow for rest and recovery between the ears.

I Don't Have Time

Ours is a profession where someone decided it was a badge of honor to respond to "How are you?" with "I am really busy."

And undoubtedly time is valuable. And being busy with important things to do is better than the alternative. Ralph Waldo Emerson was on to something when he remarked that

“To fill the hour - that is happiness, to fill the hour and leave no crevice for a repentance or an approval.”

However, consider what "fill the hour" means: 1) what you choose to do, and 2) your capability (energy) to do it.  Put another way, your time is only meaningful if you have sufficient energy. Moreover, your brain simply cannot run all the time and be effective, especially when occupied by so much noise.  And brain energy is replenished when things get quiet. As Alan Watts said, "Muddy water is best cleared by leaving it alone."

But the tools of our current age are delivering a double-whammy that keeps the gray matter consistently muddy: 1) tricking our minds into thinking that constant stimulation is the same thing as time well-spent, and 2) siphoning off attention that we sorely need to adapt to a changing world and solve difficult problems.

Our ubiquitous technology (as well as other distractions) contribute to the feeling of being busy, by occupying every "spare" second of attention. And we pay the "task-shifting penalty" each time we indulge distractions, draining energy from the brain.

So think about the importance of making better use of your time by guarding attention and doing things to increase energy. In other words, add Production Capability (a rested, recharged mind) to your toolkit in to supplement Production (the frequency with which you use your brain). 

To quote Emerson again, the key is not the number of hours, but the number of meaningful hours:

“To finish the moment, to find the journey’s end in every step of the road, to live the greatest number of good hours, is wisdom.”

You may have your day so structured that you literally do not have 20 minutes (or 10 minutes, or even 1 minute) to sit (or run or walk) quietly without distractions or other outside stimulation.  But evaluate whether that is really the case.

And as described above, the feeling of being busy is comforting. Which means that the opposite-- the feeling of getting quiet (i.e. not busy)-- is most discomforting. This idea is buttressed by the study showing that people preferred electronic shock to sitting quietly in a room even for a few minutes. But chew on this observation from Brene Brown: The only way to ensure long-term comfort is to have continual short-term discomfort. (I will come back to this in another post).

Also, I know that at times I have claimed to have a manically busy life without pausing to examine that proposition. And when I scoffed at carving out time for silence (or exercise, or journaling, planning, or simply playing) I did so unaware that I spent 13 hours at Williams Brice the previous Saturday, or 6 hours the night before binge-ing on Peaky Blinders (worst name, best show).  

I am not knocking spectator sports or (good) TV as a use of time:  my point is that if you had a little perspective or insight into how you actually spent your hours (the perspective and insight that often results when you step back from the noise in your life), you might be able to discern that indeed you weren't quite so busy as you complained/boasted/lamented. Read this piece about someone who tracked her time and realized just that.

I Am Not Any Good At It 

Oddly enough, that's the point: to get a little glimpse of your distractions. As Kelly McGonigal wrote in The Willpower Instinct, meditation is more effective the "worse" you are at it, because you get a sense of what is playing on a constant loop in your head (the tough case, the relationship you can't get over, your fears of an uncertain future, what is going to happen in the 2nd season of "Stranger Things").

And if you do give it a try, don't set yourself up for failure (and the dreaded "What-the-Hell Effect") by biting off more than you can chew. As Tim Ferriss has suggested, try sitting still with your eyes closed just long enough to hear your favorite song. Or just pay attention to your breathing.

It Doesn't Work

 

Do you look at your body after one trip to the gym and decide to give up because you can't see results? Like exercise, or other habits, you don't get to a certain point and cross a finish line. While it is true that you won't be able to admire your brain or your patience or marginal improvements in insight the same way you might a flat stomach or a larger bicep, there are tangible benefits to noticing things. The science is proving that over and over again. But you won't see those benefits overnight.

And, (prepare for paradox that causes a Type One brain to blow a fuse) to the extent it "works" it does so only when you drop the expectations that it work. Ultimately getting quiet, like most good things, is its own reward.

It's Inconsistent With My Faith

 

Every religious faith has its contemplatives. Getting quiet is not the exclusive province of any religion or tradition, but a common thread through all of them. Nobody has ever tried to convert me, and I have been at this for more than 25 years. See the quotes below. 

It's a Fad

Like everything, ideas and practices become buzzwords and cliches as the culture gets a hold of them.  (You see that I am not real keen on even using the term "mindfulness" very often because it has gotten so tired). But the only thing new about these techniques and routines is the science showing their benefits.

"Give thyself time to learn something new and good, and cease to be whirled around."- Marcus Aurelius. 

"Silence is the sleep that nourishes wisdom." - Francis Bacon 

"Half an hour's meditation each day is essential, except when you are busy. Then a full hour is needed." - Saint Francis de Sales

"In Silence there is eloquence. Stop weaving and see how the pattern improves." Rumi

“The man who fears to be alone will never be anything but lonely, no matter how much he may surround himself with people. But the man who learns, in solitude and recollection, to be at peace with his own loneliness, and to prefer its reality to the illusion of merely natural companionship, comes to know the invisible companionship of God. Such a one is alone with God in all places, and he alone truly enjoys the companionship of other men, because he loves them in God in Whom their presence is not tiresome, and because of Whom his own love for them can never know satiety.” - Thomas Merton

It Will Make Me Lose My Competitive Drive

 

Does meditating eliminate the discontent that fuels the drive to succeed?

This is a particular question asked by Tim Ferriss to both Brene Brown and Tara Brach. From my perspective, as referenced above, growth and getting better and lifelong learning require some degree of Getting Comfortable with Discomfort. And getting quiet is not going to eliminate discontent and discomfort. Just the opposite.

And if your "drive" is a future-focused perfectionism that springs from a hole you'll never fill and which craves only extrinsic validation (from partners, clients, judges, etc.), then you have larger concerns than the effect a little silence may have on you.

On the other hand, if you strive for excellence from a solid place ( i.e., based upon  intrinsic motivation) and want to get better (trying to foster a Growth Mindset), then a little awareness may provide a little space in your head for the regret of the past, the uncertainty of the future, the demands of the present, and how hard you are on yourself.

Put it this way: there is not a lot of room for courage and creativity and the ability to co-exist with uncertainty when blame and criticism and fear occupy your head.

It Causes Me to Avoid Critical Thinking

On a similar point, and as pointed out in this article, these techniques can be used to withdraw and to avoid critical thinking or tough decisions. And who doesn't feel like crawling into a cave every now and then? But the key is seeing the utility of becoming more effective at rational thinking (by learning more about how good judgment gets clouded), as opposed to foregoing critical thinking altogether.

It is Self-Indulgent

 

Well, it certainly can be. As Nicholas Taleb remarked in The Bed of Procrustes, "Meditation is a way to be narcissistic without hurting anyone." But I believe strongly that taking care of yourself is not self-indulgent at all. As Adam Grant has observed, people who are selfless to the point of self-sacrifice are at a much higher risk of burnout and of being exploited.  As the saying goes, it's ok to secure your own oxygen mask first, and taking care of yourself puts you in a much better position to help others.

Similarly, I don't think that learning a little more about the way your mind works, in service of increased awareness,  self-regulation and resilience, self-control, decision making, recognizing and minimizing bias (mostly in yourself), and listening, is self-indulgent.

Conclusion 

It is said that a cynic is someone who knows the price of everything, and the value of nothing. And every lawyer can find a hundred reasons for not doing something. All I know is that I am better when I get outside, sit quietly every now and then, or do something that takes me out of the constant barrage of stimuli characterizing most of my days. I hope you can do the things that give you that space.

Some Good Reads (Listens) for 2016

Below is a list (without specific description or review- at least for now) of some of the books I have picked up, or purchased via Audible, recently. It won't be too difficult to figure out that several of these were recommended specifically by Tim Ferriss. All are extraordinary and worth your time.

The Inevitable, by Kevin Kelly.

The Graveyard Book, by Neil Gaiman. 

The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies, by Erik Brynjolfsson and Andrew McAfee. 

When Breath Becomes Air, by Paul Kalanithi. 

Sapiens: A Brief History of Humankind, by Yuval Noah Harari

The Tao of Seneca,

How to Get Filthy Rich in Rising Asia: A Novel, by Mohsin Hamid

The Obstacle is the Way: The Timeless Art of Turning Trials into Triumph, by Ryan Holiday

  

Want to Be a Better Writer? - Make More Arguments Outside of Your Head

For all the writing attorneys do in service of explanation and persuasion, most of us don't consider how to hone and expand that ability. Below are several ways you can sharpen your pencil (timely metaphor in the information age), mainly by subjecting more product to the light of day:

1. Read (Or Listen To) Your Writing Out Loud. If it reads well, then it usually sounds pretty good, too. Hearing the way your "brilliant argument" comes across when actually spoken (after all, it is not so hard to win an argument in your head) will undoubtedly provide some insight. And there are tools that can read your briefs aloud to you. 
2. Accept Some Coaching. There are a great many accomplished writers out there, some probably a brief's throw from your office. But the ability to hear some constructive criticism requires the recognition that you've got room to improve. See above about the way we see the world from between our ears.
3. Write As Much as You Can. In addition to what you produce professionally, explore other ways to write. Consider keeping a journal, which will not only improve your writing, but help you Cage the Monkey Mind and bring you other benefits by (you guessed it) getting thoughts out of your head.
4. Publish (Share Your Writing). There are so many ways to play to an audience these days.  And as I mentioned previously, knowing that you have any audience (of one or of a thousand) makes you write more effectively (again, because you are creating a written argument to be considered by someone other than yourself). And don't let the idea that what you've created is not good enough for an audience. After all, perfect is the enemy of the good, and the benefits of gradual improvement and potential collaboration that come from sharing your writing far outweigh whatever flaws exist in your "perfect offering."

Of course, very little of the above is earth-shattering. But sharing what you create is the best way to make it better. As one fairly accomplished writer put it:

"Write with the door closed, edit with the door open." - Stephen King 

Here's to the Dissenters and Non-Conformists

I very much enjoyed this HBR podcast episode featuring Adam Grant, author of Originals: How Non-Conformists Move the World.



Several important points:

1. Follow for the Right Reasons. If you are part of an organization, you can't avoid some going along. But if you choose to march, do it because the ideas and the leadership make sense, not because you are afraid to Rock the Boat.
2. Explode the Myths of the Non-Conformists. Despite what you might believe, those who dissent often procrastinate, hate taking risks, feel doubt and fear, and have a great many bad ideas. Done, done, done, and definitely done. Also, those who "risk it all" are demonstrably less successful than those who may dip a toe in the entrepreneurial water. In other words, it is ok to Keep Your Day Job (at least until your "night" job pays).
3. Beware of Group-Think and the Ersatz Devil's Advocate. The designated DA doesn't work because that person doesn't play the role forcefully enough and/or the audience knows its a role. Better to "unearth" a real devil's advocate, especially because dissenting opinions are helpful even when wrong since they help test assumptions. I also find particularly compelling the idea of evaluating people on the way they speak up and emphasizing the awareness of your own weaknesses (both as a leader and a follower).

In other words, you do yourself and your organization a severe disservice when you check your critical mind at the door in service of conformity. (Grant wrote Give and Take: Why Helping Others Fuels Our Success, also a must-read book).

The Shared Week in Review

What Makes Us Stronger. Stress is good for you. Without it, you'd never get out of bed and get better at what you do. And learning to re-frame the way you feel about stress (for example recognizing that a life without stress would not have much meaning) goes a long way toward helping you keep from getting stuck by distress and the helplessness that goes along with it.

Manage Your Energy, Not Your Time. Likewise, because stress is a normal part of performance, the ability to rest and recover the energy you expend is also crucial. And as emphasized in the next post, daily practices and routines (regular meals, exercise, scheduled breaks, etc.) help build energy. And mindfulness practices making you aware of how you feel throughout the day and how that affects your performance are also key.

Daily Practices for Lives That Are Anything But Routine (Part 2). Have you thought about the difference between the "deep work" and the "shallow work" you do, and how to jealously guard your time to give yourself sufficient time for the former?

Desk Jockey Workout: 8 Ways to Stay in Shape at the Office. What better way to maintain mental and physical energy throughout the day than to keep moving?

Hard Time Meditating? Stop Seeking Results. As pointed out above, meditation is not about getting anywhere, it's becoming aware of thoughts and feelings. The whole idea brings to mind this classic Onion post, "Monk Gloats Over Yoga Championship".

On Zen as a Weapon Against Mind Control. If it is true that the goal of meditation is becoming aware (not to feel better), then becoming aware includes noticing when you're being played and manipulated.

If Computers Wrote Laws: Decisions Handed Down By Data. Some musings by The Economist on what the legal world may look like when computers become even more ubiquitous.

Viewing People As ... Trees? Yes! And because I have spent the week amongst the trees, a post by my good friend Ashley Pennewill about the snap judgments we make about the people we meet: