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

• Author: Gallacher, Ian
• Position: III. Methodology and Study Results B. Grade Level through V. Conclusion, with footnotes, p. 471-501

2. Grade Level

   The ideal trajectory of the Grade Level variant of the Flesch-Kincaid test should be exactly the opposite of the ideal Reading Ease trajectory, marking the transition from higher grade level (less plain) to lower grade level (more plain) writing. Figure 8 shows the ideal trajectory of Grade Level scores over the study's forty-year timespan, again showing a relatively flat decade and then a steady decrease in Grade Level scores as legal-writing education becomes more established in the legal academy and places more graduates into law firms and government positions where they put the Plain English principles of the academy into practice.

   [FIGURE 8 OMITTED]

   By contrast, but consistent with the actual Reading Ease scores, Figure 9 shows the trajectory of actual Grade Level scores, taken by decade.

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   The average Grade Level score for 1969-1978, the first decade of the study, was 12.2, with a dip to 10.7 in the second, 1979-1988 decade, and then a steady rise in Grade Level score, from 12.6 in the 1989-1998 decade, and 14.2 in the 1999-2008 decade.

   As with the Reading Ease scores, the trajectory of Grade Level scores can be seen when viewed year by year, as shown in Figure 10.

   [FIGURE 10 OMITTED]

   The study begins in 1969 with a score of 11.5, and then reflects an improving trend through 1990, where the low score of 8.3 is achieved. The next year, however, the reverse of that trend begins to assert itself, with the score jumping to 10.1 in 1991 and reaching the peak score of 15.8 in 1996. The study records five additional scores higher than 15: in 1989 (15.5), 2000 (15.6), 2003 (15.1), 2004 (15.3), and 2005 (15.1), and with the exception of one starting dip to 9.2 in 2007, scores stay at or above the levels found in the 1970s, before the influence of legal-writing education could have had an effect on lawyer writing. The Grade Level combined scores for both civil and criminal briefs are as follows:

   Grade Level: Civil and Criminal Scores Combined Year Score 1969 11.5 1970 13.6 1971 13.2 1972 11.7 1973 12.9 1974 11.5 1975 11.4 1976 12.4 1977 12.9 1978 10.9 1979 9.7 1980 10.5 1981 9.4 1982 12.9 1983 11.3 1984 9.5 1985 11.3 1986 10.7 1987 10.5 1988 11.3 1989 9.4 1990 8.3 1991 10.1 1992 10.8 1993 13.6 1994 14.5 1995 14.8 1996 15.8 1997 13.9 1998 14.6 1999 15.5 2000 15.6 2001 14.7 2002 14.8 2003 15.1 2004 15.3 2005 15.1 2006 14.6 2007 9.2 2008 12.3 As with the Reading Ease scores, while there are differences between Grade Level scores of briefs drafted for civil and criminal matters, both share the same general trajectory. The civil briefs begin with a score of 11.6 in 1969 and remain at about that level for more than two decades, rising to 14.8 the next year but returning to 11.4 in 1973, dropping to 10.0 in 1978 and returning to 11.8 in 1981, rising to 15.6 in 1982, dropping to 10.4 the next year, and coming back to 11.5 in 1988. After a two-year drop in score, to 9.3 in 1989 and the low score of 8.0 in 1990, the scores begin a steady climb thereafter, to a high score of 17 in 2003, followed by a drop to 9.3 in 2007 and 9.7 in 2008. Figure 11 charts the scores for civil cases.

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   The briefs filed in criminal cases begin with a score of 11.3 in 1969, and as with the civil scores, return to around that score for two decades, with a high score of 14.4 in 1973, a low score of 7.0 in 1981, and a score of 11.3 in 1987 and 11.2 in 1988. After a quick drop to the second-lowest score recorded--8.7 in 1990--the scores trend higher, peaking in 1996 and again in 2004 with scores of 16.2. After a similar dip to that shown in the civil scores in 2007, with a score of 9.2, the last year of the study shows a criminal brief Grade Level score of 15. Figure 12 charts the scores for criminal cases.

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   The Grade Level scores for both civil and criminal briefs are as follows:

   Grade Level: Civil Year Score 1969 11.6 1970 14.8 1971 13.2 1972 13.2 1973 11.4 1974 10.3 1975 11.9 1976 13.1 1977 12.5 1978 10 1979 10.3 1980 10.2 1981 11.8 1982 15.6 1983 10.4 1984 10.3 1985 12.2 1986 11.3 1987 9.6 1988 11.5 1989 9.3 1990 8 1991 10.2 1992 9 1993 12.4 1994 13.6 1995 14.5 1996 15.4 1997 13.4 1998 14.9 1999 16.3 2000 16.3 2001 15 2002 15.8 2003 17 2004 14.4 2005 14.3 2006 15 2007 9.3 2008 9.7 Grade Level: Criminal Year Score 1969 11.3 1970 12.4 1971 13.2 1972 10.2 1973 14.4 1974 12.8 1975 11 1976 11.7 1977 13.4 1978 11.8 1979 9.1 1980 10.8 1981 7 1982 10.3 1983 12.3 1984 8.7 1985 10.5 1986 10.1 1987 11.3 1988 11.2 1989 9.4 1990 8.7 1991 9.9 1992 12.6 1993 14.9 1994 15.5 1995 15.1 1996 16.2 1997 14.5 1998 14.4 1999 14.7 2000 14.9 2001 14.5 2002 13.9 2003 13.1 2004 16.2 2005 15.8 2006 14.2 2007 9.2 2008 15 As with the Reading Ease scores, the trend can perhaps more readily be seen in the decade averages. Figure 13 shows the average for civil scores, beginning with the 1969-1978 decade's score of 11.2, an almost unchanged average score of 11.3 in the 1979-1988 decade, and then an increase to 12 in the 1989-1998 decade, and 14.3 in the 1999-2008 decade.

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   The criminal-brief scores show an improvement in Grade Level scores for the first two decades of the study, from 12.2 in the 1969-1978 decade to 10.1 in the 1979-1988 decade. Thereafter, though, the same trend as the civil scores can be seen, with a score of 11.6 in the 1989-1998 decade and 14.1 in the 1999-2008 decade. Figure 14 charts the decade average for Grade Level criminal scores.

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3. Average Words per Sentence

   One of the principal tenets of Plain English is that a sentence should contain as few words as possible. (67) Although opinions can differ as to how short an ideal sentence should be, at least one legal-writing textbook recommends sentences of "no more than twenty to twenty-five words." (68)

   The study's per-decade-average scores show, however, that after a decline in the 1970s, briefs filed in the New York Court of Appeals have been getting wordier since the late 1980s. Figure 15 shows that the average score for the decade 1969-1978 was 17.8 words per sentence, dropping to 15.9 words in the 1979-1988 decade, and then climbing to 20.4 words in the 1989-1998 decade and 34.7 words in the 1999-2008 decade.

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   The study shows that the combined civil and criminal briefs followed the Plain English recommendation of staying below twenty to twenty-five words in the 1970s and 1980s, and then have become steadily wordier since. In 1969, the first year of the study, briefs had an average of 21.7 words per sentence, and that number climbed to 27.7 the next year. Thereafter, though, the average number of words per sentence dropped steadily to a low of 10.9 in 1989. The number started to climb in the next year, jumping from 15.8 in 1992 to 26.3 the next year, and reaching a high of 33.6 in 2004. The last two years of the study showed a precipitous drop in the average number of words in a sentence, from 27.4 in 2006 to 8.3 in 2007 and 18.1 in 2008. The trend for the last two decades, however, suggests that these two years were anomalous. Figure 16 charts the average words per sentence for both civil and criminal briefs.

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   The combined average word scores for civil and criminal briefs are as follows:

   Average Words per Sentence: Civil and Criminal Combined Year Score 1969 21.1 1970 27.7 1971 25.5 1972 19.7 1973 21.4 1974 19.4 1975 19.3 1976 20.9 1977 21 1978 17.5 1979 12.9 1980 17.6 1981 15.4 1982 22.5 1983 16.4 1984 13.1 1985 16.6 1986 14.8 1987 14.4 1988 15.6 1989 10.9 1990 11.2 1991 15.4 1992 15.8 1993 26.3 1994 24.4 1995 27.7 1996 29.7 1997 26 1998 27.8 1999 28.7 2000 28.9 2001 26.6 2002 31 2003 28.3 2004 33.6 2005 27 2006 27.4 2007 8.3 2008 18.1 Civil and criminal briefs both followed similar tracks, with briefs getting less wordy during the first decade of the study and then getting progressively wordier thereafter. Civil briefs started at an average of 20.1 words per sentence, climbing to a high of 29.7 words in the next year and then dropping over the next twenty years, with one notable leap to 29.7 words in 1982, to a low of 9.2 words in 1989. After that, the average number of words in civil briefs climbed from 10.5 words in 1990 to a peak of 32.7 words in 2003. The last two years of the study showed a drop from 25.4 words in 2006 to 8.9 words in 2007 and 9.2 words in 2008. Figure 17 shows the average number of words per sentence for civil briefs.

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   A similar pattern is evident in the criminal-brief scores, with a starting average of 22.1, rising to 27.7 in 1973 and then dropping gradually to a low of 9.6 in 1990, jumping to 15.3 the next year and climbing to an average high of 41.2 words per sentence in 2004. As with the civil briefs, criminal briefs experienced a downward plunge in average word scores towards the end of the study, with scores falling from 29.4 in 2006 to 7.7 in 2007, but then rebounding to a score of 26.9 in 2008, the last year of the study. Figure 18 charts the average word score per year in criminal briefs.

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   The average words per sentence scores for civil and criminal briefs are:

   Average Words per Sentence: Civil Year Score 1969 20.1 1970 29.7 1971 26.1 1972 23 1973 15.2 1974 17.7 1975 17.9 1976 21.2 1977 17.5 1978 14.1 1979 14.5 1980 16.7 1981 19.6 1982 29.7 1983 14.2 1984 14.4 1985 20.4 1986 17.4 1987 12.9 1988 14.6 1989 9.2 1990 10.5 1991 15.5 1992 11 1993 22.2 1994 20.3 1995 26.8 1996 27.5 1997 23.7 1998 26.9 1999 29.1 2000 26.1 2001 26.1 2002 31.7 2003 32.7 2004 26 2005 27.2 2006 25.4 2007 8.9 2008 9.2 Average Words per Sentence: Criminal Year Score 1969 22.1 1970 25.7 1971 25 1972 16.5 1973 27.7 1974 21.1 1975 20.6 1976 20.7 1977 24.4 1978 21 1979 11.3 1980 18.5 1981 11.2 1982 15.3 1983 18.7 1984 11.8 1985 12.8 1986 12.2 1987 15.9 1988 16.5 1989 12.6 1990 9.6 1991 15.3 1992 20.6 1993 30.4 1994 28.5 1995 28.6 1996 32 1997 28.2 1998 28.7 1999 28.4 2000 31.6 2001 27.1 2002 30.4 2003 23.9 2004...