Judges Scold Lawyers for Bad Writing

ON 4 March 2004, the New York Times published a story about a federal judge in Philadelphia who reduced a lawyer's request for fees because his papers were filled with typographical errors. "If these mistakes were purposeful," Magistrate Judge Jacob P. Hart ruled, "they would be brilliant."

Typos were not the only problem. The lawyer's filings, the judge wrote, were "vague, ambiguous, unintelligible, verbose and repetitive.... Mr. Puricelli's complete lack of care in his written product shows disrespect for the court.... Mr. Puricelli's lack of care caused the court and, I am sure, defense counsel, to spend an inordinate amount of time deciphering the arguments."

The judge credited the attorney for the successful conduct of the plaintiff's case. However, he reduced the lawyer's writing fees from $300 to $150 an hour, reducing his total fee by $31,000.

On the same day Magistrate Hart issued his decision, a Utah appeals court judge chastised another lawyer for textual malfeasance.

The judge, Gregory K. Orme, wrote in a dissent in a zoning case that he had been persuaded of the plaintiff's position in spite of rather than because of its filings. He chastised the plaintiff's lawyer, Stephen G. Homer, for his "unrestrained and unnecessary use of the bold, underline, and `all caps' functions of word processing or his repeated use of exclamation marks to emphasize points in his briefs."

Judge Orme stated: "It is counterproductive for counsel to litter his brief with burdensome material such as "WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!"

Bryan A. Garner, the editor of Black's Law Dictionary and the president of LawProse, a legal-writing consulting firm, said courts are becoming increasingly impatient with many lawyers' substandard writing skills.

"Lawyers are the most highly paid professional writers in the world," he said. "It's a good thing for judges to be more demanding."

Writing for Both Sides of the Brain

DURING the last thirty years, there has been a great interest and research in the graphic aspects of writing that appeal to the right side of the brain. They include typography, editorial design, layout, symmetry, and the generous use of illustrations, color, white space, graphs, and bulleted lists.

The arrival of computers certainly has improved the appearance of texts. Everywhere you look, in both printed texts and Web pages, the demand for good design rules. Much of this is the result of the many design features found in word processors and programs for the development of Web pages. Design skills that once belonged to typesetters and graphic designers are now expected of writers and secretaries.

While good design is helpful in attracting a reader to a text, it does not guarantee understanding of the text. For that, you need the right words lined up in the right order to match the skill of the reader. If the words are too long or if the sentences are too complicated, you will lose the reader quicker than it takes to turn a page.

Reading a text is very much a left-brain activity. It demands focus, word recognition, decoding, linear processing, and prediction of outcomes. If designing a page is like arranging flowers or preparing a fine meal, then reading is like tracking an animal in the woods. It requires keen observation, following clues, and matching wits with the writer. Like hunting, reading and writing take a great deal of skill and practice. Some people are much better than others.

Health Information-—Looks Good, Reads Bad

The design of health information on Web sites and other publications is often amazing. The sponsors have invested large amounts of effort, talent, and money in making these texts attractive. What is lacking, however, is attention to readability, that left-brain feature required for comprehension. When readers find the text too difficult, they stop reading.

A great number of studies have concluded that most health information is too difficult for the average adult reader. Much is written at the post-graduate level, while the average adult in the U.S. reads at the 7th-grade level. This means that less than 15% of the adult population will read it. The following text is taken from an expensive, four-color mailer advertising the programs of Hoag Hospital in Newport Beach, California. It is written at the post-graduate level:

Maintaining balance and flexibility are two key elements that help patients feel better and move more freely. Both are generously addressed through Hoag's comprehensive physical and occupational therapy programs, which offer targeted therapies in gait and balance treatment, as well as fall-prevention training for patients with difficulty walking. Hoag also offers a specialized program for combating the swallowing problems that often accompany Parkinson's disease, and an innovative speech therapy program aimed at improving voice projection and diction.

The following re-write contains the same information, but is written at the 7th-grade level:

Balance and flexibility help people feel better and move freely. If you know someone who has problems getting around, contact Hoag Hospital. We have good programs that can help people walk and move better, without fear of falling. Parkinson's disease can also cause problems with speech and swallowing. We can help people with those problems, too.

This revision can be read by 75% of the adult population, causing a significant increase in readership.

Here is another text taken from the Long Beach Memorial Hospital Website, also written at the post-graduate level:

Cardiac resynchronization therapy signals a new era in device-based solutions for this condition and 750,000 of the estimated five million Americans with heart failure could potentially benefit from it. Typically a late manifestation of other cardiovascular diseases, including coronary artery disease, hypertension and valvular disease, heart failure is responsible for more hospitalizations than all forms of cancer combined. As the only major cardiac disorder increasing in prevalence, it is estimated that 550,000 cases of heart failure are diagnosed each year. Approximately $40 billion is spent to manage the condition in the United States each year.

Here is the same information written at the 7th-grade level:

New pacemakers like this regulate the heart beat. They can help 750,000 of the five million Americans who suffer from heart failure. Heart failure is a growing problem. It results from high blood pressure and disease in the arteries and valves of the heart. This year, 550,000 people suffered heart failure. More people went to the hospital with heart failure than all forms of cancer combined. In the U.S., we spend about $40 billion a year on it.

This revision—with no loss of information—represents a 10-grade improvement in readability and promises a 750% increase in readership.

Writing for both sides of the brain is not all that easy. It takes work, method, and training, but the results are extensive. Remember to make your text attractive and easy to look at. But don't forget what makes it simple and easy to read.

Robert Gunning's Fog Readability Formula

ONE of the most popular readability formulas, and maybe the easiest to use, is the one that Robert Gunning created in 1952. While Gunning did not introduce his formula in a scientific journal like most other formulas, but it has always held its own. It ranks up there with the Flesch and Dale-Chall formulas, with an 80 percent accuracy in predicting the difficulty of a written passage.

Picture Robert Gunning
Robert Gunning

In 1935, Robert Gunning entered educational publishing. Educators were deeply concerned, as they are today, about reading problems. Too many students were graduating from high school who could not read the newspapers. He wrote, "The problem was grave indeed, but it was apparent to me that much of the reading problem was a writing problem. The writing in newspapers and daily business was full of fog and unnecessary complexity. No wonder it gave the average reader trouble."

In 1944, Gunning formed Robert Gunning Associates, the first consultants for readability. His firm worked to improve the readability of the news from organizations like the United Press, The Wall Street Journal, and Newsweek. Along with the extensive work of Rudolf Flesch, Gunning's firm improved the readability of newspapers by bringing them down from the 16th to the 11th-grade level, where they remain today.

Gunning's Fog formula is easy to apply and to remember:

  1. Find the average length of sentences in words in a passage (that is, divide the number of words by the number of complete sentences). For example, if the passage has 134 words and seven complete sentences, the average sentence length is 19 words.

  2. In the same passage, find the percentage of polysyllabic words (words with more than two syllables). That is, divide the number of words with more than two syllables by the number of total words in the passage. For example, if the same passage has 15 polysyllabic words, then the percentage (15 divided by 134) is 11.

    Do not count as polysyllabic words that are combinations of short easy words like bookkeeper or butterfly. Do not count verb forms that are made polysyllabic by the addition of -ed or -es (like "created" or "trespasses").

  3. Add the results of 1. and 2. Taking the above example, 19 + 11 = 30.

  4. Multiply the sum by 0.4. Taking the above example, 30 X 0.4 = 12. The passage has a level of difficulty requiring at least a 12th-grade reading skill.

The readability formulas have been around for a long time. Extensive research has shown that the formulas predict the difficulty of a prose passage quite well. While they are not perfectly accurate, they are the only objective tool we have for measuring readability. If there is anything wrong with the formulas, it is that they are not used enough.

The business of publishing of textbooks and children's books requires the use of readability formulas. They are generally unknown, however, in law, government, and medicine. Professionals in those areas lack training in readability and the proper use of the formulas. In short, they are not taught how to communicate with the public.

A warning comes with all the formulas: Do not write to the formula. You cannot improve the readability of a passage simply by shortening words and sentences. You also have to attend to the tone, organization, coherence, and design. The formulas work best when used with texts that are well written and match the needs of the audience.

What About the Nation's Non-Readers?

INTERNATIONAL adult-literacy expert Thomas Sticht says that, in spite of enormous efforts, the literacy ratings of high-school graduates has changed very little in the last 60 years. The problem, he states, may be that we are spending too much money helping those who can already read instead of those who cannot read at all.

National surveys often characterize those adult readers in the lower literacy ranges as "functionally illiterate" and not being able to handle the tasks required to make a living. Critics often blame the schools and parents for the fact that nearly 50% of the nation's adults read below the 7th-grade level.

Sticht points out, however, that when you ask those same persons how well they read, they give us a quite different picture.

The 1992 National Adult Literacy Survey (NALS) asked adults to rate their own reading skills as they perceived them. That study found that adults aged 16 to 59 rated themselves as reading in the following manner:

Very Well72%
Not Well or Not At All7%

Overall, then, some 93% of adults in this age range rated themselves as reading Well or Very Well. According to Sticht, the self-evaluation of 93% of adults who claim that their reading is adequate suggests an "adaptive function" to their reading demands as they perceive them. He asks, "Why is there so much interest in improving literacy among those who are evidently satisfied with their reading skills?"

Why not, instead, concentrate on those 10 million adults at the lowest literacy levels whose reading skills are so poor they could not take the literacy exam? "While this might not be a national crisis for a nation with some 200 million adults," he writes, "it is a national disgrace that so little is being done to help these adults help themselves and their families. It seems to me to be a national shame to spend billions of dollars to leave no children behind, while largely ignoring the desperate need of the children's parents and leaving them behind.

"How can this be an inspiration to children to pursue their own education? How can parents who cannot read be their children's first reading teachers? Conceivably, if we invested more in the education of poorly educated adults, we could influence the educability of the adult's children."

"With so much attention now being given by government agencies and international organizations around the world to accountability, measurable outcomes, standardized testing, and 'scientific' evidence-based programming, it is easy to lose sight of the deeper meanings and purposes of adult literacy education."

Thomas Sticht was a member of a team hired by the U.S. Army in 1973 to determine the reading requirements of different military occupations. That same study produced the FORCAST readability formula for use in military technical training manuals. Sticht also conducted and participated in over 75 other important studies of adult literacy, including these reports on the U.S. adult literacy studies:



On September 8, 2003, Koïchiro Matsuura, the Director-General of UNESCO presented UNESCO's Mahatma Gandhi Medal to Thomas Sticht in recognition of his 25 years as a voluntary member of UNESCO's International Literacy Prize Jury. Mahatma Gandhi had considered literacy as critical for the independence of India and the freedom of all people. To celebrate his receipt of this honor, Sticht is conducting a speaking tour of the U.S., Canada, and the United Kingdom on the needs of adult literacy education.

Plain Language in the News

Readability of health information:

Officialese: http://www.theage.com.au/articles/2004/02/29/1077989431576.html

HIPAA Compliance Deadline April 1 2004: http://www.emediawire.com/releases/2004/3/emw107894.htm

Make your content easy to read: http://tinyurl.com/3dx5qbc

The readability of regulations of the U.S. Federal Drug Administration:

What annual reports can learn from Buffett:

"Easy reading is damned hard writing."
— Nathaniel Hawthorne