By Dr. Ken Broda-Bahm:
The image of the trial lawyer that comes closest to our ideal might involve the advocate standing in front of the jury or the bench, waxing eloquent in oral argument. But the reality is that, even for lawyers who get to trial frequently, they’re writing more often than they’re speaking. Before, after, and often instead of those opportunities for oral persuasion, they are drafting briefs, motions, and memos. As attorneys get used to that written style, it can become difficult to gauge how comprehensible they are. You think you’re being perfectly clear — and you are, to you — but you may have lost track of how much work is falling on the reader. There is, however, a tool that can help, and lawyers should be aware of it. Contently, the content-marketing blog, writes about “reading level analysis” as a free online service you can use in order to test whether you’re writing at, say, a 5th, 9th or 12th grade reading level. The test itself is easy. You simply navigate to the “readability-score” site, paste any text you want into the window, or upload a file if it is in pdf, or paste in a URL if the text is already online. Then, click “calculate score” and you instantly get a “reading ease” number that varies between 0 (most difficult) and 100 (easiest), along with a more understandable identification of the grade-level that you are writing at.
This blog, for example, is written at about a 7th grade reading level. So…middle school is apparently where I peaked. The Jury Expert, the journal covering many of the same topics I address, is a year behind — just finishing elementary school at 6th grade. But lest we assume that this means we’re all publishing in baby talk, it is worth asking the question “What level are we aiming at?” The answer is, “A lot lower than you might think.” As the Contently post indicates, most best-selling authors write at the 8th grade level, or below. Some of the greats of Western literature, like Hemingway’s The Old Man and the Sea are far lower: 4th grade. Now, readers (those of you who made it past 7th grade) might wonder, why wouldn’t reading level be at least 12th, if not collegiate level for works who aim to speak to advocates and legal decision makers? The answer is that you don’t just want your writing to be just possible to understand, you want it to be easy. That imperative to make it easier applies to writing, and it applies at least doubly to speaking. This post takes a look at assessing your level of language, and includes an illustration of some of the features that take language to a higher or lower level.
The Case for Lowering Your Reading Level
Because I had it handy, I decided to take the full text of a summary argument from a recent patent mock trial and paste it into the “readability-score” test. The text had already been subject to edits by a large team of attorneys as well as several consultants, and the team was guided by Henry David Thoreau’s three imperatives: simplify, simplify, simplify! The result? Still nearly an 11th grade level. Now, most of the mock jurors had made it past 11th grade, but the text was not simple enough. There ends up being a big difference between what they can understand if they really put their mind to it, and what they will understand based on their motivation, attention, and state of mind. We know from the mock trial research that even after simplifying, those jurors who understood the argument well enough to intelligently discuss it were the exceptions. It is a question of cognitive load: You want your information to be, not just understandable, but easy enough to understand that your target understands it while still conserving their scarce resources of attention and thought.
So, one implication is that if you have a memo, a trial brief, or just a tricky explanation that you want to check out, use the readability-score site and try to get that grade level as low as possible while still preserving the accuracy of your message.
Especially in Oral Communication
What is understandable in written form is not always clear when presented in oral form. A primary reason for that is that, when reading, we don’t simply track the words in linear fashion on the page. Instead, we scan, we single out key words, and we “loop back” to earlier parts of a sentence to remind ourselves of what the subject was, and what this clause is modifying. We can’t do that when hearing the message delivered verbally. For that reason, it needs to be as clear as possible. That means shorter sentences, and straightforward subject-verb-object sentences, with few modifying phrases. And it means building in a reasonable level of redundancy: “Tell them what you’re going to tell them, then tell them, then tell them what you told them.”
As far as I know, there isn’t a “readability-score” site that specifically measures oral style, but there should be one. It is still safe to say that text written at a lower reading level will also be more clear when presented orally.
How Do You Lower the Reading Level?
One publishing site, Wheatmark, writes about an investment guide publisher who wanted to see what explained the difference between investment newsletters, with some having high renewal rates and others not. Using the same test referenced above, he found that reading level was a big part of the answer. “There was a direct relationship between simplicity and success. The writers who had the lowest Flesch-Kincaid scores had the highest renewal rates.”
The article boils down five steps for reducing that score:
1. Write about one idea at a time.
2. Keep your sentences short. The fewer words between periods, the lower your score. While a few long sentences are not bad and add variety, aim for less rather than more.
3. Five sentences per paragraph is a good amount. Some will be shorter, a few longer, but break up text often for greater ease of reading. Some paragraphs can be as short as one or two sentences.
4. Use words with as few syllables as possible. For instance use the word big instead of enormous.
5. Include dialogue in your writing when possible. Natural conversation tends to be short and direct. It also adds interest to an article.
Let me apply those five rules to a section of a mock trial opening statement. Using a mocked up products liability fact pattern that we used earlier in our visual persuasion study, I tried my hand at a few different versions. Here are the results.
Here is a section explaining a tricky point about weight placement in a baseball bat.
First, we have the complicated version: 13.9 grade reading level
There is a tradeoff involving weight and mass in a bat, such that if more weight is in the barrel, the bat is harder to swing so the swing speed is slower, but if more weight is in the handle, the bat is easier to swing, so the swing speed is faster. But the key to this tradeoff is understanding that the ball is not hit with any greater force or velocity with a bat weighted in the handle versus a bat weighted in the barrell. This is true because a faster swing with a lighter barrel hits with the same force as a slower swing with a heavier barrel, and that is based on physics. The tradeoff means a 30 ounce bat can and does hit the ball about the same, no matter where you put the weight. Though the plaintiff wants you to believe there is something sneaky going on, but you can’t trick physics, and the physics of baseball and the physics of testing baseball bats provides an investigator like you with the answers you need.
Next, we have the version as presented: 6.3 reading level
Here is how the tradeoff works. If more weight is in the barrel, the bat is harder to swing so the swing speed is slower. If more weight is in the handle, the bat is easier to swing faster. But the key to this tradeoff is understanding the ball is not hit harder with a bat weighted in the handle. Why not? Because a faster swing with a lighter barrel hits with the same force as a slower swing with a heavier barrel. It’s physics. The tradeoff means a 30 ounce bat can and does hit the ball about the same, no matter where you put the weight. Though the plaintiff wants you to believe there is something sneaky going on –you can’t trick physics, and the physics of baseball and the physics of testing baseball bats provides an investigator like you with the answers you need.
Finally, I found I could make it even more simple: 4.4 reading level!
There is a tradeoff. Here is how it works. If more weight is in the barrel, the bat is harder to swing so the swing speed is slower. If more weight is in the handle, the bat is easier to swing faster. But the key to this tradeoff is understanding the ball is not hit harder with a bat weighted in the handle. Why not? Because a faster swing with a lighter barrel hits with the same force as a slower swing with a heavier barrel. It’s physics. The tradeoff means a 30 ounce bat can and does hit the ball about the same, no matter where you put the weight. The plaintiff wants you to believe there is something sneaky going on. But you can’t trick physics. An investigator like you would start with physics. The physics of baseball and the physics of testing baseball bats provides the answer.
It is the same argument, just with small changes to sentence length and structure. Those small changes can make a big difference.
Other Posts on Language and Comprehension:
- Remember, Jurors Are Always Forgetting
- Expect Strong Beliefs to Cloud Analytical Ability
- Teach As Well As Persuade
Photo Credit: 123rf.com, used under license, edited by author