Writing Matters

• Publication year: 2012
• Pages: 0064

Writing Matters Nos. Vol. 18 No. 1 Pg. 64 Georgia Bar Journal August, 2012

Improving Legal Writing—Quantifiably

by Jennifer Murphy Romig

An enduring challenge for writers is the difficulty of looking at a draft, especially your own, and seeing what really is there. One method for judging writing objectively is to measure it using readability statistics such as the "Flesch Reading Ease" score and the "Flesch Kincaid Grade Level."^[1] As their names indicate, these statistics help to quantify the ease of reading and the grade level of a piece of writing. Taking readability statistics into account is valuable because legal writing that is easier to read is more comprehensible^[2] and may also be perceived by readers as more persuasive,^[3] more prestigious^[4] and just more likeable^[5] than less-readable alternatives.

Readability statistics are free and easy-to-use because they are built right into most word processors, including Microsoft Word^[6] and Word Perfect.^[7] Free web pages will also generate readability statistics for short passages of text^[8] and websites.^[9] The graphic on page 65 is a sample readability report on this column produced by Microsoft Word 2010.

Under the Readability heading, this report lists several metrics about the text. The two classic readability scores

can be found at the bottom of the report: the Flesch Reading Ease score and Flesch-Kincaid Grade Level score.^[10] These two statistics use the same factors—primarily sentence length and proportion of multisyllabic words—but different formulas for balancing them.^[11]

With the Flesch Reading Ease score, writing is easier to read when this number is higher. Legal writing consultant

and author Ross Guberman recommends striving for a Reading Ease score in the 30s for writing to lawyers and judges, and a Reading Ease score in the 40s for writing to clients.^[12] In other words, writing to non-lawyers should be easier to read than writing to other lawyers and judges.

The other statistic available in Microsoft Word's report is the Flesch-Kincaid Grade Level score. As its name indicates, this score approximates the grade level of a piece of text. Writing is easier to read when this number is lower. The New York Times is written at approximately an eighth-grade level.^[13] U.S. Supreme Court Justice Roberts' majority opinion in FCC v. AT&T^[14] has a Grade Level score of 13.4. (This opinion was among the writing recognized by The Green Bag Almanac and Reader as "Exemplary Legal Writing" for 2011.^[15])

An obvious initial objection to trying to improve readability statistics for legal writing is that using short and simple words does no one a service when those words are not accurate. Sometimes legal words cannot be simplified with shorter synonyms; if a lawyer needs to describe a "usufruct," no other word will do. Lawyers should not over-simplify their message so much that it is not accurate.

But much legal writing can and should be streamlined with shorter sentences and simpler word choice. The neat thing about readability statistics is that they often tend to improve alongside adherence to classic editing advice and proper grammar and punctuation.^[16]

For example, one astoundingly common^[17] problem afflicting legal writing (and writing generally) is the comma splice. This is a particular type of run-on sentence characterized by two independent clauses joined only by a comma.^[18] Here is one example in the legal context:

The court ruled that mandamus was the proper remedy, therefore it remanded the case.

This sentence earns a favorable Reading Ease score of 53.6 and Grade Level score of 9.2. While the sentence is easy to read, it is not grammatically correct due to the comma splice. Adding a semicolon after "remedy" not only makes the sentence grammatically proper, but also enhances its readability statistics. The revised sentence has an improved Reading Ease score of 60.7 and a Grade Level score of 6.5. This improvement comes about because both readability formulas take into account sentence delimiters, which include periods, exclamation points, colons and semicolons.^[19] The lack of appropriate...