By Dr. Ken Broda Bahm:
Lawyers are notorious for using language that carries some comprehension challenges. When this “legalese” is directed to and understood by other lawyers, that use can be understandable, even if it is still annoying. But when it is directed at the public it can be a big source of failed communication. For example, legal instructions and other critical language like stipulations, affidavits, or contracts often need to be understood and applied by fact-finders in court. There has been a long-term effort to do something about this, and the “Plain language” movement can claim at least some success in various contexts and venues. But still, clarity is often the exception rather than the rule when it comes to legal-speak.
A recent study demonstrates this. Researchers from MIT and the University of Edinburgh (Martinez, Mollica & Gibson, 2022) used bodies of legal and non-legal text containing millions of words in order to search for the relative prevalence of language features that distinguish legal communication from communication in other social contexts. In a nutshell, they find that legal writing is different in several ways, and those differences lead to significantly lower rates of comprehension and recall when these texts are read and interpreted by the general public. Lawyers can be drawn to this style of writing based on a feeling that it conveys more accuracy and precision, or simply because it fits with the expectation to sound “legal.” But too often, the legal style fails at the most basic language function of reliably conveying meaning. In this post, I will focus on the factors that researchers identify as the most common culprits in limiting the comprehensibility of legal language.
It’s Not Just the Jargon
Some might assume that legal language resists easy interpretation because it is based on terms with specialized meanings. Jargon, however, was only one of the factors, and not the strongest. One of the biggest culprits, it turns out, was “center embedded clauses,” or segments of text that interrupt and qualify the main thread of meaning in a sentence, often building one clause in the middle of another clause. For example, a sentence might contain common words, yet still resist quick interpretation by nesting clauses within clauses: “The contract terms which are agreed to by the parties identified above are to remain fully enforceable on all parties relating to both requirements and prohibitions are to remain in effect for the duration of the agreement.” Complex constructions like that can always be rewritten as separate and simpler sentences.
The other factors the researchers identified included non-standard capitalization, including using ALL CAPS for emphasis, as well as passive voice, low frequency jargon, and archaic words (like “aforesaid,” “herein,” and “to wit”).
It Is Prevalent
While it might seem to be common sense, apparently there were no prior studies demonstrating the extent to which legal writing features greater comprehension barriers. “Our study,” they write, “provides the first large-scale systematic account of the presence of all of these features in legal texts, both overall and relative to the baseline.” Comparing the frequency of embedded clauses, passive voice, non-standard capitalization, and low-frequency jargon, they found that the prevalence far exceeded the rate in writing samples drawn from other sources of writing for the public (including newspaper, blog, and magazine articles as well as entertainment scripts and websites). They noted that in most cases, the rates in legal writing were strikingly higher.
It Does Limit Comprehension and Retention
Using 184 pre-tested readers, the team assessed comprehension and recall of texts with and without the “legalese” features described above. Predictably, they found that the legal-style speech was comprehended and recalled at rates significantly lower than that of other speech. “Contracts drafted with all of these features were more difficult to both comprehend and recall than contracts drafted without all of these features.”
Legal Writing Can Be Simplified (Without Losing Precision)
The legal style is often justified on the grounds that it is more precise and accurate. Under that theory, legalese would be harder to comprehend simply because the law involves specialized concepts that may be unfamiliar to the lay public. But another view that law is built on very ordinary concepts (concepts like “cause,” “consent,” and “responsibility”) but these common concepts are simply expressed in ways that are, for most, very uncommon.
The research findings in this study support the latter interpretation: It isn’t the concepts or the jargon, it is the writing style. If legal writing truly was more precise, it wouldn’t be less effective at conveying understandable and comprehensible meaning. To take one illustration, the authors share the example that, in physics words like “quark” or “electron” do not have “higher-frequency synonyms” — there are no other words for it, so these terms simply have to be learned by anyone wanting to understand physics. But the law, in contrast, uses many words that do have higher-frequency and more understandable synonyms: “after the fact” being much more clear and common than “ex post facto.”
The takeaway advice for anyone drafting texts that need to be understood by the public:
- Use active voice where possible
- unpack multi-clause sentences into shorter sentences
- substitute commonly understood language for jargon
- follow common rules for capitalization
Because of their own “curse of knowledge,” lawyers may not fully get the idea that it is hard to understand legal language. It may feel very clear if you just break it down. But that “break it down” habit is one that was likely learned in law school, and it is a habit that is not practiced by most. Both in the courtroom and in documents, lawyers’ first focus should be on clarity. In the quest to be more influential, lawyers can start by talking like normal people.
Other Posts on Legal Writing:
- Ethos, Pathos, and Logos: Use All Three in Your Legal Writing and Oral Argument
- For Immediacy, Use Active Voice (but for Abstraction, Passive Voice Can Be Used)
- Embrace Plain English Jury Instructions
Martínez, E., Mollica, F., & Gibson, E. (2022). Poor writing, not specialized concepts, drives processing difficulty in legal language. Cognition, 224, 105070.