We are all familiar with hyperlinks (like this.) Clicking on a hyperlink will take the reader to a new page. Our rules won’t allow the drafter to hyperlink to material outside the document itself, at least at this point, but will allow you to hyperlink to spots in the same document. For example, you can link a line in the table of contents to the corresponding part of a brief.
We have all also seen bookmarks. Bookmarks also allow you to jump to another place in your document, but your starting point is a set of links in a separate pane alongside and to the left of your document. (Bookmarks look like this.) Bookmarks will always be visible and available (as long as the correct settings have been used) and will “travel” with the document as the reader scrolls through it.
So, for example, a simple version of your table of contents outline can appear in the navigation pane so the reader can jump to a desired passage of the brief or memo at will. The links in the navigation pane will appear alongside the document text as the reader progresses through it, so that they are always handy and accessible. (Unless the reader chooses to hide them.)
As noted, hyperlinks and bookmarks can allow the reader to jump from one part of your table of contents to document text. But both tools have many other rhetorical purposes. Bookmarks in particular can help you point the reader to the parts of the brief or memo you think are most important, and let you explain why. For example, you could have bookmarks (after your table of contents links) that say, “The most important case,” or “Why Respondent’s breach argument is wrong,” or “Why the tolling argument is incorrect.”
In this way, bookmarks give another tool to highlight your most important points, and make it easy for judges to find the most important parts of your brief or memo.
The courts’ web site includes instructions on creating bookmarks and seems to endorse the broad use of them. It’s not clear, though, that the courts have fully considered the rhetorical uses of bookmarks. This will undoubtedly be addressed down the road. At present, the rules do not address their use, and there is nothing saying that rhetorical bookmarks can’t be used.
(Justice G. Barry Anderson has discussed the use of bookmarks in a CLE. His thoughts on their rhetorical use follows.)
One thing is clear: bookmarks of all kinds must be used in moderation to be effective. Otherwise, they will overwhelm the reader. So bookmarks for the brief outline should be limited to the most important points, not all subparts of an outline. And, rhetorical bookmarks should similarly be limited to the most important points.
In addition, if opposing counsel is not registered for e-filing, a PDF with the hyperlinks and bookmarks should be sent to that person by email, so that he or she is able to see what the court sees. And the cover letter to the clerk’s office should note that the e-filed copy of the document contains bookmarks and hyperlinks. So everyone knows that the bookmarks and hyperlinks are there.
It’s easy enough to see the structure of a paper document and flip through it to go from one point to another. That is not as easy to do with a digitally-filed one. But hyperlinks and bookmarks can help the decision-maker navigate easily through the document. So we should learn how to use them.