By Dr. Ken Broda-Bahm:
I often play the role of the “judge” during a mock trial. In that capacity, I have the pleasure of reading the legal instructions to the mock jurors just before they deliberate. While I’m droning on about “preponderance,” and “proximate cause,” and making the plaintiff “whole,” I am often met with quizzical looks as the jurors grapple with the language. Some have even made a vain attempt to raise their hands to ask a question. I sometimes wish I could explain, “Look, my point is not for you to understand this… it is just to be realistic.” And, too often, what is realistic is for the instructions to be dense at best and incomprehensible at worst. “Jury instructions are written by lawyers,” the American Judicature Society points out, “and are often filled with legal language whose meaning is not apparent to those without legal training.” Research spanning several decades shows that traditional instructions fail in their most basic role. One early study (Charrow & Charrow, 1979), for example, showed that when research participants heard a recording of California’s earlier pattern jury instructions and were then asked to summarize the meaning in their own words, one-half to two-thirds of the content was lost.
The solution to this comprehension challenge has been slow in coming. It is the radical idea that instructions to nonlegally trained fact finders, should be delivered in language they can understand. And a long line of research shows that these “Plain English” instructions are much more comprehensible (e.g., see Winters, 2009). Based on the clear verdict from the social science literature, you would think the move to plain language would be moving faster, but outside of a handful of states, the revolution is still just inching along. One obstacle is the strong motivation to rely on instructions that have survived appellate scrutiny in prior cases: No matter how tortured the language, they seem safe (despite the fact that appeal rates remain relatively low, while confusion rates with traditional instructions approach 100 percent). Another obstacle, however, is that it isn’t always clear what “plain” means, and how specifically lawyers can “dumb it down” while still preserving the accuracy and precision the law demands. As Cicero, the ancient Roman lawyer noted, "Plainness of style seems easy to imitate at first thought, but when attempted, nothing is more difficult." One new study (Randall & Graf, 2014), however, is helpful in not only showing that plain English works, but in also narrowing the focus to just a couple of key elements that make legal instructions understandable. This post reports on that research and provides some ideas for improving the linguistic clarity of both the instructions and the persuasion generally.