Study Finds Poor Writing, Not Legalese, Makes Legal Documents Difficult

#LegalHumor #LegalCartoon #lawyers

According to the Commonplace Fun Facts Legal Department, one of the first things they teach in law school is, “Never use one word where ten will suffice.” Actually, what they told us was, “We practitioners of jurisprudence make a prodigious effort ad infinitum to ascertain and articulate through the lexicon peculiar to the practitioners of the profession the concepts, conditions, controversies, and counter-arguments pertaining and in any way related to the query, hypothetical, and/or observation presented by those who seek to be enlightened, informed, or otherwise advised.”

The representative of the Legal Department drew a breath to say more, but we made a strategic dash for the exit before he could continue.

Everyone knows that lawyers speak a different language. It is one that was, no doubt, used extensively on their home planet. They continue to use it long after attempting to pass themselves off as members of the human species. The peculiar language is frequently known as Legalese. Its characteristics include unnecessarily-long words, excessive repetition of the same concepts through long lists of synonyms, and an unhealthy obsession with fragments of dead languages that weren’t particularly popular when that language was still in common use.

This is why you need a lawyer to write legal documents. It’s also why you need another lawyer to interpret legal documents. It also explains why you frequently need another lawyer to explain the second lawyer’s interpretation. We may not like the idea, but we have pretty much accepted the necessity. The legal profession deals with obscure concepts of law, after all. We need professionals who understand all the nuances to make sense of it all for the rest of us.

Or maybe legal documents are hard to understand because they are poorly written.

A recent study casts doubt on the idea that difficult legal concepts are responsible for making documents incomprehensible. It could be that it’s simply a matter of bad writing.

Researchers Eric Martinez, Francis Mollica, and Edward Gibson analyzed about 10 million words of contract language and compared that to other genres of English writing. They studied how well readers could understand and remember excerpts of various writing with and without certain features. Their findings were published in “Poor writing, not specialized concepts, drive processing difficulty in legal language,” (Cognition, July 2022).

According to the study:

[C]ontracts contain startlingly high proportions of certain difficult-to-process features—including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization—relative to nine other baseline genres of written and spoken English. Two experiments further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more—so than other features.

These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large.

The researchers concluded that legal contracts contain startlingly high proportions of “certain difficult-to-process features — including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization — relative to nine other baseline genres of written and spoken English.”

The low-frequency jargon refers to words that we rarely use in ordinary conversation: aforesaid, hereinafter, to wit, hereinbefore, and whereas, for example.

Add to this the tendency of lawyers to commit other grammar atrocities such as capitalizing words for no apparent reason. Theoretically, it helps certain words or concepts stand out to the reader. In reality, it creates confusion.

The authors of the study received the 2022 Ig Nobel Prize for Literature. Their findings emphasized the legal writing phenomenon of agentless passives (“The right to a trial is waived”) and “by” passives, also known as reversible passives (“The right to a trial is waived by both parties”).

When compared to other media of communications, legal writing rises head-and-shoulders above the others in all the ways good writing should not. Non-standard capitalization occurs at twice the rate at which it appears in newspapers. Lawyers use center-embedded sentences at nearly four times the rate such sentences appear in spoken conversation. They commit the big no-no of using passive sentences nearly fifteen times more frequently than script writers for TV and movies.

The only category where legal writing scores lower than its counterparts is in average word frequency. Unfortunately, this category is a lot like bowling: the higher score is better. This refers to the use of commonly-employed jargon. Lawyers prefer archaic words, making legal writing more difficult to understand than academic papers.

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