37 of the 50 United States now have legislation requiring legal documents that must be used by the general public (like lay-away plans, rental agreements, or insurance policies) be written in what is called “Plain English.” A few states define the term in one or two sentences, suggesting that “you know it when you see it.” Almost all the others utilize readability formulae that were developed a half-century ago. Unfortunately, while these formulae are quite wondrous in
determining whether a given story should be included in a reader for fifth graders or one for eighth graders, the formulae fail dramatically when they are applied to sophisticated legal documents.
In 2008, I was hired as an expert witness for a major consulting firm acting on behalf of a major law firm acting on behalf of a major bank to make an argument for why ten pages of their prose explaining to their 75,000 employees a major change in retirement benefits were written in “Plain English.” They were written in excellent and very plain English; but they failed every readability test used by any of the States.
I wrote a 120-page document that was divided into three parts: (1) First, I tore apart the idea of using any of these readability formulae for legal documents; (2) then I explained 5 of the most significant “Reader Expectations” that I have developed in my revolutionary way of teaching and analyzing writing; and then I applied each of those 5 expectations to every sentence in the 10 pages at issue.
The result: The small law firm that had sued the big bank withdrew its class action suit (in which at least hundreds of millions of dollars were at stake, and maybe more), with prejudice (meaning they could not resubmit the suit later) and without asking the bank for a settlement – which almost never happens. When the Judge asked the plaintiffs’ lawyers why they were doing this, they said, “We can’t beat his argument.”
Having reduced the 120-page document to 88 pages, I cannot find anyone willing to publish it. The law reviews (edited by law students) simply do not regard legal writing as a sexy enough topic to allow it to take up space in their open shot at publication. So I am self-publishing it here for anyone who wants to understand truly how we can judge whether a document is or is not written in “Plain English.”
Here is the paper: Measuring Plain English: Using Reader Expectations to Redefine Readability