Lawyers are notorious for using language that causes comprehension problems. When this “legalese” is addressed and understood by other lawyers, this usage can be understandable, even if it remains boring. But when he speaks to the public, he can be a big source of communication failure. For example, legal instructions and other critical terms such as stipulations, affidavits or contracts often need to be understood and applied by investigators in court. There has been a long-term effort to do something about it, and the “Clear language” movement can claim at least some success in various contexts and places. Nevertheless, clarity is often the exception rather than the rule when it comes to legal language.
A recent study demonstrates this. Researchers from MIT and the University of Edinburgh (Martinez, Mollica & Gibson, 2022) used legal and non-legal text corpora containing millions of words to research the relative prevalence of linguistic 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 that these differences lead to significantly lower comprehension and recall rates when these texts are read and interpreted by the general public. Lawyers may be attracted to this style of writing because of the feeling that it conveys more accuracy and precision, or simply because it matches the expectation of a “legal” sound. But too often, legal style fails at the most basic linguistic function of reliably conveying meaning. In this article, I will focus on the factors that researchers identify as the most common culprits in limiting the understandability of legal language.
It’s not just jargon
Some might assume that legal language resists easy interpretation because it is based on terms with specialized meanings. Jargon, however, was only one factor, not the strongest. One of the biggest culprits, it turns out, was “embedded center clauses”, or segments of text that interrupt and qualify the main thread of meaning in a sentence, often building a clause in the middle of another clause. . For example, a sentence may contain common words, but resist rapid interpretation by nesting clauses within clauses: “The contractual terms agreed to by the parties identified above shall remain fully applicable to all parties regarding both the requirements and prohibitions. remain in effect for the duration of the agreement. Complex constructs like this can always be rewritten into separate, simpler sentences.
Other factors identified by the researchers included non-standard capitalization, including the use of ALL CAPS for emphasis, as well as passive voice, low-frequency jargon, and archaic words (such as “above”, “here” and “namely”).
While this may sound like common sense, there were apparently no previous studies demonstrating the extent to which legal writing comes with greater barriers to understanding. “Our study,” they write, “provides the first large-scale, systematic account of the presence of all of these features in legal texts, both globally and relative to baseline.” By comparing the frequency of embedded clauses, passive voice, non-standard capitals, and low-frequency jargon, they found that the prevalence far exceeded the rate of writing samples drawn from other writing sources for the public (including newspapers, blogs and magazines). articles as well as entertainment scripts and websites). They noted that in most cases, legal writing rates were surprisingly higher.
This limits comprehension and retention
Using 184 pre-tested readers, the team assessed comprehension and recall of texts with and without the “legal” features described above. As expected, they found that legal-style speech was understood and recalled at significantly lower rates than other speech. “Contracts written with all of these features were harder to understand and remember than contracts written without all of these features.”
Legal drafting can be simplified (without loss of precision)
Legal style is often justified on the grounds that it is more precise and accurate. According to this theory, legalese would be more difficult to understand simply because the law involves specialized concepts that may be unfamiliar to the general 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 the most part, very unusual.
The research results of this study support the latter interpretation: it’s not the concepts or the jargon, it’s East writing style. If legal writing were really more precise, it wouldn’t be less effective in conveying comprehensible and comprehensible meaning. To take an illustration, the authors share the example that in physics words like “quark” or “electron” have no “higher frequency synonyms” – there are no other words for that, so these terms just need to be learned by anyone who wants to understand physics. But the law, on the other hand, uses many words that have more frequent and more understandable synonyms: “after the fact” being much more clear and common than “ex post facto”.
Takeaway advice for anyone writing texts that need to be understood by the public:
- Use the active voice if possible
- unpack multi-clause sentences into shorter sentences
- replace jargon with commonly understood language
- follow common capitalization rules
Due to their own “knowledge curse”, lawyers may not fully understand that it is difficult to understand legal language. It may seem very clear if you break it down. But this habit of “breaking down” is a habit that was probably learned in law school, and it’s a habit that is not practiced by most. Both in the courtroom and in the documents, the primary emphasis of lawyers should be on clarity. In an effort to be more influential, lawyers can start by talking like normal people.
Martinez, E., Mollica, F., & Gibson, E. (2022). Poor writing, unspecialized concepts, lead to processing difficulties in legal language. Cognition, 224105070.