Plain language in Appellate Decisions: Wisdom From Richard Zorza

One of the legal profession’s great thinkers has some wisdom for appellate judges (and trial judges) when writing their opinions and orders:

A Way For Courts to Show They Are Serious About Making The Law Accessible — Plain Language Explanations of Appellate Decisions

by richardzorza

Here is an idea for how appellate courts could demonstrate their commitment to making the law accessible. They could include in all decisions a short explanation of the decision in plain language (great examples of plain language in box in linked doc). This would help ensure that the increasing free access now being developed would actually be comprehensible, and would maybe help answer fears that providing such access would be inadequate, misleading, or even cause judicial hostility if it lead to real or apparent failure to understand and correctly argue from cases (for a frightening example, see here).

Including such a plain language explanation might be made a formal requirement by court rule. Appellate court staff would then be responsible for drafting the explanation, for review by the writing judge. Sometimes the staffer would get it wrong — surely a signal that the opinion needed revision to clarify the intent of the court. At other times the staff might be unable to find the words, again an indication of something needing attention. In any event, such a process would surely sensitize staff and judges to the practicalities of plain language.

There are many tools for measuring comprehensibility. Indeed Word has one built in. In an embarrassing disclosure, I should admit that the score using the Flesch-Kincaid Grade Level test for the text above is 11.7, meaning that you would have to be very near graduating from high school to understand it. Oops.

Perhaps some courts should experiment with this, so that they can develop the skills and experience needed, and then share that with others.”

 

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