March 2013 29 12 10 8 6 4 2 0 Contractor’s Insurance Subcontractor’s Insurance Visual explaining separate towers of underlying and excess insurance coverage Bentley Excess XI Excess XI Primary Domus Umbrella Domus Primary Or consider the definition of negligence. Most readers are much less likely to remember: The elements of negligence are the existence of a legal duty, a breach of that duty, and damages that proximately resulted from that breach. Than: The elements of negligence are: 1. the existence of a legal duty, 2. a breach of that duty, and 3. damages 4. that proximately resulted from that breach. It is easier for the brain to process multiple bits of information when they are broken into distinct chunks. 5. Use visuals Strangely, American lawyers seem reluctant to use visuals in legal filings. Most trial and appellate court filings present arguments almost exclusively with text. The reason for this reluctance may be tradition. Visuals were difficult to create with typewriters. Today, word processing programs can create visuals with remarkable ease. Photos can be scanned and pasted directly into a document. Graphs and charts are easily created to explain complex legal rules, case law holdings, facts, and data. As an illustration, imagine trying to explain separate towers of underlying and excess insurance coverage using the traditional paragraph form: The Contractor’s tower of insurance included three policies. The first is the XI Primary Policy, which required Contractor to pay a self-insured retention for the first $500,000 in losses. After the $500,000 self-insured retention, the XI Primary Policy provided $500,000 in coverage, but it also had a $500,000 deductible. The second was the XI Excess Policy, which provided $1m of excess coverage. This coverage was for losses in excess of the XI Primary Policy, and it followed the terms and conditions of the Primary Policy. The third is the Bentley Excess Policy, which provided $10m of excess coverage. This coverage was not for losses in excess of any particular underlying policy, but instead was excess of the underlying amount of $2m. The Subcontractor had two policies with Domus, a $1m primary policy and a $5m umbrella policy. This is much more easily explained in the visual above. Visuals are common on the Internet. They often communicate information more quickly, and with less work for the reader, than the same information in paragraph form. Conclusion Room exists for debate about whether technology’s effect on reading is beneficial or harmful to the law. On the one hand, American judges and lawyers have long valued the act of studying law. That is why most American bar associations require several years of legal study before an attorney may become licensed. Today, technology is discouraging study at the same time that it is encouraging rapid-information gathering. Because we are observing this transition as it happens, the effect of technologies on reading may appear disturbing. On the other hand, rapid-information gathering is a necessary adaptation to this new rapid, informationrich environment. Lawyers and judges are knowledge professionals. By using electronic research, communication, and document management, lawyers and courts can gather more information in less time. Whether these changes are beneficial or harmful, the reality for legal writers is that the reading habits of their audience are changing. To communicate and persuade, advocates must be able to understand how their audience is reading, and adapt to make legal writing usable for all manners of reading. © 2013 Xchanging