Georgia Bar Journal August 2012 : Page 64

Writing Matters Improving Legal Writing—Quantifiably A by Jennifer Murphy Romig n 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 statis-tics 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, includ-ing 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 64 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—pri-marily 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 con-Georgia Bar Journal

Writing Matters

Jennifer Murphy Romig

<br /> Improving Legal Writing—Quantifiably<br /> <br /> 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.” 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 and may also be perceived by readers as more persuasive, more prestigious and just more likeable than less-readable alternatives.<br /> <br /> Readability statistics are free and easy-to-use because they are built right into most word processors, including Microsoft Word6 and Word Perfect. Free web pages will also generate readability statistics for short passages of text and websites. The graphic on page 65 is a sample readability report on this column produced by Microsoft Word 2010.<br /> <br /> 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. These two statistics use the same factors—primarily sentence length and proportion of multisyllabic words—but different formulas for balancing them.<br /> <br /> 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. In other words, writing to non-lawyers should be easier to read than writing to other lawyers and judges.<br /> <br /> 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. U.S. Supreme Court Justice Roberts’ majority opinion in FCC v. AT&T 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)<br /> <br /> 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.<br /> <br /> 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.<br /> <br /> For example, one astoundingly common 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.Here is one example in the legal context:<br /> <br /> The court ruled that mandamus was the proper remedy, therefore it remanded the case.<br /> <br /> 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. The lack of appropriate sentence delimiters in a comma splice is the crux of the problem and is reflected by the improved readability statistics for the grammatically correct version.<br /> <br /> While the comma splice is an issue of proper grammar and punctuation, other classic edits may be viewed as more stylistic and therefore not essential to readability. Yet in many cases, classic edits correlate with improved readability statistics as well.<br /> <br /> One classic edit is to reduce excessive verbiage, sometimes referred to as throat-clearing20:<br /> <br /> It has been commonly held that a plaintiff in a misrepresentation case has a choice of remedies: to affirm the contract and seek damages or to rescind the contract and sue in tort.<br /> <br /> This sentence has a decent readability score: 47.7 for Reading Ease and 14.8 for Grade Level. But the first part of the sentence could be omitted to bring out the main idea much earlier:<br /> <br /> A plaintiff in a misrepresentation case has a choice of remedies: to affirm the contract and seek damages or to rescind the contract and sue in tort.<br /> <br /> This sentence has slightly higher readability, with a score of 50.9, and a slightly lower grade level at 12.8. Of course the concept of what is commonly held may not actually be throat clearing; the writer may in fact want to emphasize that idea. But readability statistics help reveal the tradeoff of using that type of language.<br /> <br /> Another valuable edit for any writing with citations is to remove the citations from the regular sentences and put them at the end of each sentence or in footnotes. Here are two versions of the same information, one with the citation in the sentence and one with it moved outside:<br /> <br /> In Yeomans v. Commissioner, the Tax Court established three criteria for the cost of clothing to be deductible as an ordinary and necessary business expense: (1) The clothing is required or essential in the taxpayer’s employment, (2) the clothing is not suitable for general or personal wear, and (3) the clothing is not so worn.<br /> <br /> The Tax Court has established three criteria for the cost of clothing to be deductible as an ordinary and necessary business expense: (1) The clothing is required or essential in the taxpayer’s employment, (2) the clothing is not suitable for general or personal wear, and (3) the clothing is not so worn. Yeomans v. Commissioner, 30 T.C. 757, 768 (1958).<br /> <br /> The first version sentence does not seem unreadable but clocks in at an atrocious 7.9 for Reading Ease and 24.8 for Grade Level. Moving the case name out of the sentence improves its Reading Ease score to 14.1 and its Grade Level very slightly down to 24.2. Note also that the first version includes just the case name, not the numerical citation that follows it. Including the full citation within the sentence rendered Microsoft Word incapable of even computing readability statistics. This result is consistent with the classic editing advice to remove citations, especially full citations, to improve readability.<br /> <br /> Readability statistics do not always improve alongside classic edits. For example, cutting unnecessary words can shorten a sentence (thus improving readability) but also increase the percentage of multisyllabic words (thus diminishing readability). Also, the formulas behind readability statistics do not take into account the occasional need to break rules for strategic reasons or to connect a sentence with other sentences around it. Readability statistics also appear insensitive to the order of ideas in the sentence, which can make a major impact on the sentence’s clarity and persuasive impact. Readability statistics’ quantitative nature makes them unable to adjust for such discretionary decisions.<br /> <br /> Yet readability statistics do provide a free, fresh and concrete tool for taking an objective look at a piece of writing. For individual writers, these statistics may be best saved for the end of the writing process, providing a holistic look at a nearly final draft or targeting a particular portion that still seems just awkward. For law-yers as editors, readability statistics could help show that edits are not merely stylistic choices but quantifiable improvements. And for any lawyer writing to the all-important client audience, more readable legal writing may help lawyers influence their clients to like them (even) more.

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