"When numbers get serious": a study of plain English usage in briefs filed before the New York Court of Appeals.

• Author: Gallacher, Ian
• Position: Introduction through III. Methodology and Study Results A. Readability Scores, p. 451-471

At the time of writing, the academic discipline of legal writing has just celebrated its twenty-fifth birthday in the United States. (1) This is a significant milestone and the discipline enters its second quarter century in impressively robust health: It has three professional organizations dedicated to it, (2) three specialist journals, (3) an ever-expanding bibliography of articles published in other journals and law reviews, (4) two listservs and at least one blog, (5) and a library full of books devoted to its study and teaching. (6) Most law schools in the country employ faculty dedicated to teaching legal writing, many of them adjuncts, to be sure, but many more as full-time teachers. Indeed, because the recognized best-practices model of teaching legal writing involves relatively small classes, (7) it is likely that there are more teachers of legal writing in the current American legal academy than there are for any doctrinal subject. (8) There are, of course, numerous challenges still to be faced by those teaching in the area, (9) but it would be difficult not to view the rapid growth and integration of legal writing into the American legal curriculum as an almost complete success story.

The rise of legal writing's importance in the legal academy has coincided with recognition of writing's importance in a lawyer's professional life. (10) Practitioners, (11) clients, (12) judges, (13) the general public, (14) and legislators (15) have all recognized that clarity and simplicity of expression are important to lawyers (16) and are the natural allies of legal-writing faculties across the country.

This rosy picture might come as a surprise to someone whose perception of lawyers has been formed by the historically poor light in which legal writing has been viewed. (17) And it is here that a slight blur of doubt must intrude into the optimistic vision of the current legal-writing landscape, because the criticisms of legal writing continue, apparently unabated, even though for the past twenty-five years or so, law schools have been producing graduates who are carefully trained in the technique and practice of legal writing. (18) If legal writing is such a successful discipline, why is it that the consumers of that writing--practitioners, judges, and so on--are still so critical of it?

Part of the answer to that conundrum might be that criticism of legal writing is a cultural norm, an accepted critical trope passed down from generation to generation that has nothing to do with the actual quality of the writing under consideration. If that is the case, then evidence should exist to show that legal writing has actually improved in the recent past, and that the current criticisms of legal writing are, if not unfounded, then at least based in part on perception rather than reality.

At least one study suggests precisely that. (19) Brady Coleman and Quy Phung conducted a survey of briefs filed in the United States Supreme Court between 1969 and 2004 (20)--a corpus of nearly 9000 documents. (21) The authors used three "readability" formulas--the "Flesch Reading Ease Score," the "Gunning Fog Index," and the "Flesch-Kincaid Index" to study trends in the readability of these briefs. (22) The authors conducted their survey based on the assumption that "the average readability scores of [the briefs would function] as a proxy for plainness in writing" and summarized their results by noting that "[i]f our most important assumptions are accepted--that readability offers reliable evidence of plainness, and that Supreme Court briefs provide an acceptable representation of legal writing (23)--then the following conclusion is warranted: A gradual historical trend towards plainer legal writing is revealed over recent decades." (24)

The Coleman/Phung study found that a Flesch Reading Ease analysis of the argument section of their brief corpus revealed no significant changes over time, and therefore did not include those results in the final article. (25) The study did, however, find a reduction in the Flesch-Kincaid scores for argument sections in briefs, from a starting position of 14 in 1970 to a final result of 13.5 in 2004, and with a high just below 14.4 in 1973 and a low just below 13.2 in 1983. (26)

Coleman and Phung recognized that the results of their study, while consistent with a trend towards greater plainness of expression in the argument section of their brief corpus, were not especially strong indicators of this trend. They explain their results as follows:

As we anticipated, changes in average readability scores were stronger in the Statement of Facts section of Supreme Court briefs than in the Argument section. The Statement of Facts almost always offers legal writers more stylistic and structural flexibility than the Argument section. The factual narrative, typically chronological, yet unencumbered by the constraints of rule based legal argument and the need for citation to legal authority...