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Swimming with the Sharks: Strategies for Convincing Lawyers (and Other Guilty Parties) to Adopt Plain Language

Created for the Plain Talk 2012 Conference hosted by the Maximus Center for Health Literacy.
by

Chris Trudeau

on 20 February 2013

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Transcript of Swimming with the Sharks: Strategies for Convincing Lawyers (and Other Guilty Parties) to Adopt Plain Language


Normally, attorneys should reduce the number of words in their documents. But if those words are essential to explaining a term, then attorneys should include that explanation. Strategies for Convincing Lawyers (and other Guilty Parties) to Adopt Plain Language Swimming with the Sharks: Prof. Christopher Trudeau
Thomas M. Cooley Law School Most Cited Causes of Health Illiteracy Health care providers But there are other guilty parties: Lawyers
Executives
Underwriters
Actuaries Patients The educational system Cultural influences Key Decisionmakers Some Lawyers & Executives Support Plain Language But it is mostly surface-level support. Goal of this presentation: To provide strategies to help you convince these key decisionmakers that plain language is the path to health literacy. Two-Levels of Convincing Needed (1) Rational arguments for plain language (2) Emotional arguments overcoming the barriers against plain language Rational arguments for plain language: (1) Plain language is economical. (2) Plain language helps develop a positive brand image. (3) The public prefers plain language. In health care, the public is the audience.
Lawyers drafting health-care documents often forget this. For more on this, read the best seller: Switch: How to Change Things When Change Is Hard, by Chip & Dan Heath Proof that plain language is economical Source: See Kimble, Joseph, Writing for Dollars, Writing to Please, Carolina Acad. Press (2012) The Cleveland Clinic Revised a billing statement using plain language. Recovered an extra $1,000,000 a month in the following months. 80% increase in patient payments. Los Angeles County Department of Consumer Affairs redrafted scores of documents, simplified recorded phone messages, and conducted plain language workshops. The result? The result? Produced an annual savings of $50,000.
Improved the readability of documents by about four grade levels.
Reduced volume of consumer calls by 30%. General Electric Revised hard-to-read software manuals into clearly written manuals. The result? GE estimated it saved between $22k to $375k per year for each business customer who used the manual. Plus, GE received 125 fewer calls from customers who used the clear manuals. Plain language can help develop a positive brand What's the point? The language we use matters: it can influence a broad array of audiences and help improve a company's (and a lawyer's) reputation. The public prefers plain language There are many studies on the public's preference for plain language in non-legal contexts. But, until recently, no studies focused on the public's preferences when receiving legal information. So, in 2011, I conducted a study to help fill this gap. See Trudeau, Christopher, The Public Speaks: An Empirical Study of Legal Communication, 14 Scribes J. Legal Writing 121 (2011-2012) 78.4% — If you don’t respond, the court will issue a default judgment. That means you’ll lose, and the court will give the plaintiff what he is asking for.
86.0% of responders with law degrees preferred the plain version. The Results: Choice-of-Language Questions
86% of responders chose the plain version for multi-variable sentences. (Those five sentences where there were multiple errors.) The Results: Choice-of-Language Questions The Results: Choice-of-Language Questions
38% said they had stopped reading a document out of frustration,
16% could not recall doing so, and
47% had not stopped reading a document. While a majority (58%) would at least “often” look up a term, 17% would rarely or never do so. That means 1 in 8 people wouldn’t understand the term – odds that I sure wouldn’t want to take.
The sample included far more responders with advanced degrees than the population as a whole.

59 (16.3%) were 18 – 29 years of age;
100 (27.6%) were 30 – 39 years of age;
64 (17.7%) were 40 – 49 years of age;
78 (21.5%) were 50 – 59 years of age;
46 (12.7%) were 60 – 69 years of age;
11 (3.0%) were 70 – 79 years of age; and
1 respondent (0.3%) was 80+ years of age. Analyzing the Responses
Limited to the following areas:
Active voice v. passive voice (four questions)
Strong verbs v. nominalizations (two questions)
Plain words v. complex words (four questions)
Explaining a legal term v. not explaining that term (one question) Four Categories continued: The Survey: 28 Questions in Four Categories Why this study? To help provide data for the following unanswered questions: Question: In your lifetime, have you ever received a letter or document from any attorney that was difficult to understand? Question: How important is it for a client to understand what an attorney is saying in a letter or document? The Results: Clear, Understandable Communication
is Important Designed to separate clients from non-clients. Designed to gather information in areas for which there is little or no empirical data, such as
The importance responders attached to understanding an attorney,
The percentage who have received a legal document that was difficult to understand, and
The responders’ reactions when reading material that was difficult to understand. Preferences for Attorney Communication Experience with Attorneys Choice-of-Language Questions Demographic Questions Designed to help categorize the results on age, education, etc. 376 people responded to the survey Clients comprised 54.5% of the sample. (220 responses) Non-Clients comprised 45.5%. (171 responses) Responses in every age category: To what degree do clients and non-clients prefer plain language over traditional legal language? Do people read what lawyers write? How do people react when they see complicated legal language that they don’t understand? How often will they look up complicated terms? Have they ever been so frustrated by such language that they quit reading a document? Helped break out clients by areas of law. Designed to test whether responders preferred plain legal language or traditional legal language. These questions gave responders a randomized choice between a plain passage and a traditional passage. Responses by education level: Caveat: 116 respondents (31.9%) had less than a bachelor’s degree (an associate’s degree, some college, or a high-school diploma); 105 (28.9%) had a bachelor’s degree; 80 (22.1%) had a master’s or doctoral degree 61 (16.8%) had a law degree. But that was a benefit here because it allowed me to more accurately measure preferences based on education. 99.7% of responders thought it was at least important to understand an attorney!
88.3% said it was very important.
11.4% said it was important. 99.7% of the responders thought it was important to understand attorneys, yet 7 out of 10 have struggled to do so at some point in their lives. 71% of responders indicated that they had received a document that was difficult to understand at some point in their lifetime. The takeaway? Question: If you read an attorney’s letter or legal document and you did not understand a term, would you look up that term? 32% said they would “always” look up the term,
27% would “often” look up the term,
25% would “sometimes” look up the term,
13% would “rarely” look up the term, and
4% would “never” look up the term. The takeaway? This result may seem obvious, but it provides empirical support for the central goal of the plain-language movement. Question: How does it make you feel when an attorney uses Latin words or complicated words in written documents? Question: Have you ever felt so frustrated when reading an attorney’s letter or a legal document that you stopped reading it before it ended? After this question, I added a text box asking responders to explain why they stopped reading a document. But what frustrates these people? It was all in the English language, yet I could not understand the mumbo-jumbo!! This for me feels condescending and corrupt. Here are six of those responses: Lack of answer, simplicity, and way too long. Because of legal terminology. I do not feel like I am a stupid person by any stretch of the imagination, but just imagine how those feel of average or below-average intelligence due to lack of education, social circumstances, etc. Because it made me feel dumb. And I didn’t know what was being said. If too much of the content is difficult to understand, I feel like I’ve already missed too much to get the full meaning. I used to work for some good attorneys that treated people as equals. So when I used my own, I was mad that he was using terms to make himself sound better than me. Overall result: 80.2% of clients & non-clients preferred the plain version over the traditional legal version. Past clients were 5% more likely to choose the plain version.
82.4% of clients selected the plain version.
77.5% of non-clients selected the plain version. Some were single-variable questions with only one error. (2) All the sentences were understandable, so there was no obvious choice in most instances. This was much higher than I expected because (1) I varied the complexity of the 11 sentences. Others were multi-variable questions with more than one error. Overall Result: As complexity increases, so does the preference for plain language. 75% of responders chose the plain version for single-variable sentences. (Those six sentences where there was only a single difference.) Overall Result: As education increases, so does the preference for plain language! These results were counter-intuitive. I had predicted just the opposite. 76.5% of responders with less than a bachelor’s degree preferred the plain version. 79.4% of those with bachelor’s degree preferred the plain version; 82.0% of responders with master’s or doctoral degrees preferred the plain version; and Active v. Passive: Individual Results 56.7% – The employer’s attorney questioned the witnesses.
43.3% – The witnesses were questioned by the employer’s attorney. 72.0% – The Board of Directors decided to review the file.
28.0% – A decision was made by the Board of Directors to review the file. 68.1% – The court dismissed the case.
31.9% – The case was dismissed by the court. 78.7% – Michigan courts have consistently held that homeowners must actually supply alcohol to a minor to violate the statute.
21.3% – It has been consistently held by Michigan courts that a homeowner must actually engage in the supplying of alcohol to a minor to commit a violation of the statute. Question 14: (Single-Variable) Question 16: (Multi-Variable) Question 24: (Multi-Variable) Question 22: (Single-Variable) Active v. Passive Overall: Respondents preferred the active voice 69% of the time. 73% for client responders
65% for non-client responders. 62% selected active for single-variable questions.
75% for multi-variable questions. A significant difference between single-variable questions (14 & 22) and multi-variable questions (16 & 24) Why the 13% difference? Both options for the single-variable sentences were understandable on the first read through and were about the same amount of words. Word-Choice Questions: Individual Results 83.1% – Discovery may begin before the judge considers the motion.
16.9% – Discovery may proceed prior to the judge’s consideration of the motion. 90.5% – If this breach continues, my client will immediately terminate this contract.
9.5% – If there is a continuation of this breach, my client will effect an immediate termination of this contract. 97.2% – I have signed and enclosed the stipulation to dismiss your case.
2.8% – I am herewith returning the stipulation to dismiss your case; the same being duly executed by me. Question 15: Question 17: Question 18: Question 19: 81.0% – Under the statute, you must purchase insurance.
19.0% – Pursuant to the statute, you must purchase insurance. Question 21:
97% – The court, among other things, decided that the defendant was negligent.
3% – The court, inter alia, decided that the defendant was negligent. Question 23: 79.6% – Before the injury, my client was able to work a full week. Therefore, the injury has significantly impacted my client’s ability to lead a normal life.
20.4% – Prior to the injury, my client was able to work a full week. Therefore, said injury has significantly impacted my client’s ability to lead a normal life. Overall: Responders chose the plain version 88% of the time. Explaining Legal Terms Question 20 21.6% — If you don’t respond, the court will issue a default judgment. The takeaway? Five Common Arguments Against Plain Language Myth #1: Plain language means I cannot use legal terms or discuss legal topics Myth #2: Plain language creates vagueness or ambiguity Myth #3: Even if the public prefers it, other lawyers and judges don't, so I'll stick with what works. Myth #4: This document is "court tested," so we shouldn't change it. Myth #5: If legal documents were easy to read, lawyers would be out of a job. Ways to combat this argument Explain that lawyers can and must use legal terms in some documents. But if they must, then define those terms for the average reader. Have the lawyer create a diagram or outline of all the legal areas that need to be covered. This takes the focus off of using specific language. Then when the plain document is drafted, have the lawyer check against the diagram. Ways to combat this argument Tactfully ask the lawyer to point to an area that is ambiguous. Usually, they cannot do it. But if they do, then ask them whether they think it is contextually (semantically) ambiguous or syntactically ambiguous. It's a rare lawyer that knows the difference, and it subtly emphasizes that you know what you're doing. How to combat this argument Ways to combat this argument? There are many studies showing that judges and lawyers favor plain language in legal documents -- the average preference is around 80%. For specific support, send them to www.lawprose.org for a collection of videos of judges and lawyers praising clear writing. Ways to combat this argument This is the most difficult to overcome, but try these strategies: If the document had to be "court tested," then it wasn't very clear in the first place. If someone cannot understand something, they have no choice but to sue. A clear document will reduce litigation costs & customer calls. Look at the court's ruling in the "test" case. It probably wasn't based on the wording -- it was decided on the meaning. Ways to combat this argument This is simply not true. Lawyers get paid to analyze problems, research issues, craft delicate arguments, conduct discovery, etc. Simply put, we get paid to handle problems that others don't want to handle. Using clear language will make life easier on all involved.
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