Legal writing is the worst, new study confirms

October 25, 2022

Dear legal writer, don’t let this be you. (Source: Cognition, Vol. 224, July 2022)

The next time someone remarks that you “write like a lawyer”, think twice before you take that as a compliment.

Traditional legal writing – the stodgy, jargon-riddled style known as ‘legalese’ – remains in frequent use, confounding clients and inspiring endless lawyer jokes. For some in our profession, legalese is a perk of the job: after all, who else gets to toss around gems like ‘thereinbefore’?

But a new study has confirmed what the plain English movement has been warning for decades: legalese is not just bad, it’s the worst.

Published in the July 22 volume of the journal Cognition, the study unsheathes its sword right from the title: “Poor writing, not specialized concepts, drives processing difficulty in legal language.” It then goes on to lay waste to four tropes of English legal writing:

Low-frequency jargon: nontechnical terms being kept alive solely by the legal profession (see, e.g., ‘thereinbefore’, supra)

Center-embedded clauses: clauses within clauses, which must be teased apart for meaning to emerge. Embedded clauses can be even more mystifying when English is a foreign language for the writer or reader. Consider the following example, taken from the writing sample of one of our course participants*: “The participation of companies mentioned in item 3.1 will be subject to the prohibition in the provision, by any means, including the shareholders agreement, of the shares in the management of the Private Shareholder, being hindered to appoint members of the Executive Board.”

Use of the passive voice: although the active voice is generally preferred and better understood, passive-voice structures are often resorted to by lawyers. (See what was done there by us?)

Non-standard capitalization: the use of ALL CAPS to emphasize important terms in a legal document, which the researchers contend does “NOT AID COMPREHENSION” (emphasis ours). Note that this is different from the use of capitals to denote defined terms in a contract.

Researchers analyzed 3.5 million words taken from contracts, comparing them to 15 million words drawn from newspaper articles and other sources of everyday usage. They found that contracts contained “startlingly high proportions” of the thorny tropes above, and that “excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers.”

The biggest offender? The convoluted syntax of center-embedded clauses. Scolded the researchers, “[T]he fact that center-embedded clauses were more than twice as prevalent per sentence in the contract corpus than in the standard-English corpus, and inhibited recall to a greater degree than other features in our experimental study, suggests that the cause of the processing difficulty of legal texts may be largely related to working memory costs as opposed to a mere lack of understanding of specialized legal concepts.”

In other words, maybe the problem is not that readers are too dense for brilliant English legal writing. Maybe English legal writing is too dense for brilliant readers.

If any of this looks unsettlingly familiar, don’t despair. We at Expert Legal Language are big fans of the plain English movement. Our courses can help you to avoid stylistic traps that claim many a native English speaker, keeping your legal English clear, sleek, and jargon-free.

(Well…as jargon-free as possible in a world that won’t stop using terms like ‘estoppel’.)

*Having taken our course, the participant no longer writes this way.

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