Tuesday, August 30, 2011
As I have mentioned previously on this blog, I believe that understanding brain science is becoming an important legal skill. Julie Baker has written an article applying aspects of brain science to legal writing, specifically plain language.
And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate
Abstract: “Legalese – you mean jargon? Legal jargon? Terrible! Terrible!” – U. S. Supreme Court Justice Stephen G. Breyer, 2010.
This statement captures the prevailing view in the teaching and practice of legal writing – that “legalese” is bad and must be eradicated; and that plain language should be employed as the alternative to legalese. Yet defenders of legalese remain – and they argue that the language of the law is intertwined with the law itself, such that “simplifying” this language detracts from its meaning and makes it less precise. How, then, is a legal writer to write?
This article posits that the two different methods are not polar opposites, but rather are “endpoints” on the spectrum of language available to the legal writer. To explain this view, the article begins by reviewing what we mean by “legalese” vs. “plain language,” and how the one has fallen into disfavor while the other has become the prevailing method in legal writing pedagogy and practice. The article then undertakes a study of Cognitive Science, particularly Cognitive Fluency – the measure of how easy or difficult the mental process feels when the brain receives information. Fluency principles are critical to the understanding of the preference for plain language, which until now has been supported only by anecdotal and empirical surveys.
Applying fluency principles to legal writing, the article demonstrates that most of the time, plain language is, in fact, the right way to write, as it is “fluent” and thereby inspires feelings of ease, confidence, and trust in readers (whereas legalese is “disfluent,” engendering feelings of dislike and mistrust). The article suggests, however, that there are times when the legal writer’s analytical or persuasive goals may be served by more difficult, less fluent language – and that, going forward, an approach aimed at moderating fluency will produce the most effective legal writing. Thus, no language (except, maybe, “law French”) should be prohibited entirely; but all language should be considered as the range of options available to the skilled legal writer.
(hat tip: Gabriel Teninbaum)