Building Rapport

The last defence of the nervous lawyer is “the judge won’t like it.” Guess what she will like plain language.

Joe Kimble and others conducted studies in Michigan, Florida, and Louisiana more than twenty years ago. Robert W. Benson and Joan B. Kessler conducted another study in Los Angeles, California. The results indicate that the participants found the Legalese passage to be less persuasive than the Plain English version. The respondents also believed the Plain English author was more believable, well-educated, and worked for a prestigious law firm. All of these studies compared only sentences or paragraphs and included both lawyers and judges.

A new study compared actual pleading documents, surveyed only judges, and asked directly and only about persuasiveness. Of 800 judges mailed the survey, 292 responded. This survey was conducted by Sean Flammer, a trial attorney at a Texas litigation firm. He had previously clerked for a judge of the United States Court of Appeals for the Eleventh Circuit.

The study has been reported in the Journal of the Legal Writing Institute and has become available online:

PERSUADING JUDGES: AN EMPIRICAL ANALYSIS OF WRITING STYLE, PERSUASION, AND THE USE OF PLAIN ENGLISH
Sean Flammer
The Journal of the Legal Writing Institute [Vol. 16] 212
also: http://www.journallegalwritinginstitute.org/archives/2010/183.pdf

Flammer survey shows:

The results are clear: judges prefer Plain English to Legalese. Whether a judge is an appellate or trial judge or a federal or state judge plays no role in whether the judge prefers Plain English. Nor does the judge‘s gender, age, years of judicial experience, or years of experience in the legal profession. Whether a judge‘s district is rural or urban plays no role, either. Judges—by a two-thirds margin—find Plain English more persuasive than Legalese. Thus, it is in the litigator‘s interest to submit pleadings in Plain English.

Flammer worked with 3 samples drawn from an actual court pleading:

1. a 3-page excerpt from the original pleading
2. a plain language revision, following the advise of experts in legal writing
3. an “informal” version taking plain language plainer, using contractions and colloquialisms

Each judge saw either #1 and #2 or #1 and #3. A majority of judges preferred 2 or 3 over the legalese of #1.

Flammer reports:
The judge‘s age, number of years spent in the judiciary, number of years spent in the legal profession, and gender had no correlation with whether the judge preferred Plain English or Legalese. Further, whether the trial judge was from a rural or urban district did not matter.

Some judges elaborated on their preference with these remarks about the the Plain English sample:

• more persuasive because of the succinctness of the argument.
• easier to understand, more clear and straightforward, and therefore, more persuasive.
• simpler, more direct prose. Getting to the point trumps pontificating any day.
• easy reading. It goes directly to the point.

Judges appreciated:

• brevity
• use of lists
• deletion of the opening paragraph‘s gobbledygook language

These judges found the Plain English sample to be ―cleaner, leaner, and more effective and understandable.

The bad news for legalese writers is that they won’t be read carefully:

The convoluted style led me to skimming for its essence. This was not the only judge who stated that the writing style in the Legalese sample inspired him to pay little attention to the document‘s logical intricacies. These comments make clear that an indirect and convoluted writing style is likely to make the document go unread. An unread document cannot be persuasive.

The minority of judges who preferred legalese, liked that it was
―more polished
―formal
―easier to read

What about the “cranky” judges (my soulmates)? They said that the two plain language versions did not go far enough. Those writings were

• too wordy
• poor writing
• too verbose and filled with formal legalese
• not punchy enough
• capable of being made more succinct

The data show that judges—as a group—would much rather have an attorney err on the side of informality than err on the side of being too stilted and formal. One judge made a fair criticism of this Plain English sample in that it was not plain enough and was too wordy. Another said, “Short and direct is almost always more persuasive.”

More evidence is in, judges are sold on plain language, so why not be brave and use it.

Read my books, Plain Language Legal Writing and Plain Language in Plain English, both available with free U.S. shipping this summer at Plain Language Wizardry.