By Dr. Ken Broda Bahm:
I often play the role of the “judge” during a mock trial. In that capacity, I have the pleasure of reading the legal instructions to the mock jurors just before they deliberate. While I’m droning on about “preponderance,” and “proximate cause,” and making the plaintiff “whole,” I am often met with quizzical looks as the jurors grapple with the language. Some have even made a vain attempt to raise their hands to ask a question. I sometimes wish I could explain, “Look, my point is not for you to understand this… it is just to be realistic.” And, too often, what is realistic is for the instructions to be dense at best and incomprehensible at worst. “Jury instructions are written by lawyers,” the American Judicature Society points out, “and are often filled with legal language whose meaning is not apparent to those without legal training.” Research spanning several decades shows that traditional instructions fail in their most basic role. One early study (Charrow & Charrow, 1979), for example, showed that when research participants heard a recording of California’s earlier pattern jury instructions and were then asked to summarize the meaning in their own words, one-half to two-thirds of the content was lost.
The solution to this comprehension challenge has been slow in coming. It is the radical idea that instructions to nonlegally trained fact finders, should be delivered in language they can understand. And a long line of research shows that these “Plain English” instructions are much more comprehensible (e.g., see Winters, 2009). Based on the clear verdict from the social science literature, you would think the move to plain language would be moving faster, but outside of a handful of states, the revolution is still just inching along. One obstacle is the strong motivation to rely on instructions that have survived appellate scrutiny in prior cases: No matter how tortured the language, they seem safe (despite the fact that appeal rates remain relatively low, while confusion rates with traditional instructions approach 100 percent). Another obstacle, however, is that it isn’t always clear what “plain” means, and how specifically lawyers can “dumb it down” while still preserving the accuracy and precision the law demands. As Cicero, the ancient Roman lawyer noted, “Plainness of style seems easy to imitate at first thought, but when attempted, nothing is more difficult.” One new study (Randall & Graf, 2014), however, is helpful in not only showing that plain English works, but in also narrowing the focus to just a couple of key elements that make legal instructions understandable. This post reports on that research and provides some ideas for improving the linguistic clarity of both the instructions and the persuasion generally.
What’s So Complicated About Plain Language?
“There is a trend-albeit slow and spotty-toward redrafting jury instructions into ‘plain English,'” the American Judicature Society notes. A relatively small number of states have moved toward plain language instructions, most noteably California, but also Delaware, Michigan, Minnesota, Missouri, and North Dakota. Judging from the instructions that make the cut for mock trial presentations, the language is still pretty complicated in most venues I work in around the country.
It is not a matter of the instructions being impossible to figure out: With enough care and attention, they can often be understood by reasonably smart individuals who lack a legal education. But it is a matter of cognitive load: Instructions that are phrased in the traditional modes are harder to immediately grasp, harder to apply, and harder to talk about. Loyola University’s Language and Law site explains, “Beyond vocabulary, instructions are problematic linguistically because they are often poorly organized, lexically quite dense, and expressed in rambling sentences that start with a proviso, state a rule of law, and end with several exceptions. Moreover, they tend to be written at a high level of abstraction, proclaiming general principles of the law of murder, for example, rather than telling jurors in more concrete terms how they are to go about their task of deciding whether the defendant in question should be found guilty of first degree murder.”
Make it Plain
“When you wish to instruct, be brief,” Cicero wrote, “that men’s minds take in quickly what you say, learn its lesson, and retain it faithfully. Every word that is unnecessary only pours over the side of a brimming mind.” The National Center for State Courts has a useful resource guide that includes a number of practical articles focused on reducing the complexity of instructions. The features most often mentioned are the following:
- Brevity: One topic per instruction, one idea per sentence.
- Active voice: “The plaintiff has burden of proof,” rather than “Burden of proof is bourn by the plaintiff.”
- Common-use words: Avoid unnecessary jargon, and define necessary jargon as it is used.
- Positive phrasing: “To prove liability, the plaintiff must prove the product is unreasonably dangerous,” rather than “If the plaintiff fails to prove the product is unreasonably dangerous, the plaintiff has not proven liability.”
- Simple grammar: Avoid “nominalizations” such as converting verbs (fail, omit) to nouns (failure, omission). The latter makes for longer sentences and passive voice.
- Don’t presuppose terms: Provide the explanation or definition prior to the use of any unfamiliar term.
In order to look at the relative roles that each of these and other language factors play in creating plain and understandable explanations, Janet Randall and Lucas Graf of Northeastern University focused on California’s 2003 move to plain English instructions, and six specific “before” and “after” instructions. Earlier research found that the plain English versions were more comprehensible, but that it varied across different instructions, with some improvements being larger and others being smaller. Randall and Graf wanted to find out why. Analyzing the differences between the easier- and harder-to-understand versions, they found that it came down to two key features of the less comprehensible versions: passive verbs and presupposed terms.
To clarify this distinction, here is an example used in the Randall and Graf article. It contrasts a version of current pattern instruction on direct versus indirect evidence and a plain English version of the same instruction. Passive terms are shown in blue, and presupposed terms are shown in red.
Current Version:
There are two types of evidence that you may use to determine the facts of a case: direct evidence and circumstantial evidence. You have direct evidence where a witness testifies directly about the fact that is to be proved, based on what (he/she) claims to have seen or heard or felt with (his/her) own senses, and the only question is whether you believe the witness. You have circumstantial evidence where no witness can testify directly about the fact that is to be proved, but you are presented with evidence of other facts and then asked to draw reasonable inferences from them about the fact that is to be proved.
Plain English Version:
You have heard evidence that you must use to decide what the facts are in this case. There are two types of evidence. One type is called direct evidence, which is what a witness claims to have seen or heard or smelled. So a witness saying that she saw a mailman put mail into her mailbox is direct evidence that the mailman delivered the mail. The other type of evidence is indirect or “circumstantial” evidence. A witness saying that she saw that her mailbox was empty when she left the house and full when she came home is indirect evidence that the mailman delivered her mail. Indirect evidence allows you to reach the same conclusion as direct evidence, but you have to make an inference – a logical connection – to get there. It makes no difference whether evidence is direct or indirect. One is not better than the other.
Make Your Persuasion Plain as Well
It stands to reason that whatever works in making the instructions understandable will also work in making the advocacy understandable. In closing arguments especially, you will want to speak the language of the instructions and the verdict form, which points out another advantage of plain English instructions: They make it easier for you to close the deal. When you’re stuck with the tortured versions, however, you can still capture at least part of the advantage of plain English instructions by going as far with your own translations as the judge allows. And even if you can’t preinstruct explicitly, you can still use your own language and the bullet list above in order to model effective explanations and to lay out the general path the jurors will follow.
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Other Posts on Comprehension:
- Check Your Language Level
- Take a Schematic Approach to Jury Instructions
- Know the Power of a Cause Instruction: But for “But For,” Jurors Decide Differently
- Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions
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Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979).
Randall, J. H., & Graf, L. R. (2014, October). Linguistics meets” legalese”: syntax, semantics, and jury instruction reform. In LSA Annual Meeting Extended Abstracts.
Photo Credit: 123rf.com, used under license