Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing 20 Loyola of Los Angeles Law Review 1986-1987

20 Loy. L. A. L. Rev. 301 (1986-1987)
Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing

handle is hein.journals/lla20 and id is 325 raw text is: LEGALESE V. PLAIN ENGLISH: AN
EMPIRICAL STUDY OF PERSUASION AND
CREDIBILITY IN APPELLATE
BRIEF WRITING*
Robert W. Benson**
and Joan B. Kessler***
I. OVERVIEW
This Article reports the first empirical research on the effectiveness
of different prose styles in appellate briefs. Appellate judges and their
research attorneys were asked to assess passages from briefs written in
traditional legal prose or legalese.I Other judges and research attor-
neys in the same court were asked to assess the same passages rewritten
in plain English.2 By statistically significant margins, the respondents
rated the passages in legalese to be substantively weaker and less persua-
sive than the plain English versions. Moreover, they inferred that the
* Copyright by Robert W. Benson and Joan B. Kessler, 1986.
** Professor of Law, Loyola Law School, Los Angeles, California; A.B. 1964, Columbia
College; J.D. 1968, University of California, Berkeley.
*** Law clerk, Frandzel & Share, Los Angeles, California; B.A. 1967, University of Michi-
gan; M.A. 1969, University of California, Los Angeles; Ph.D. 1973, University of Michigan;
J.D. 1986, Loyola Law School, Los Angeles. Ms. Kessler was an Associate Professor of
Speech Communication at California State University, Northridge, when this Article was ac-
cepted for publication.
This project was completed with research funds from Loyola Law School, Los Angeles.
The authors wish to thank Professor William Eadie, Chair, Department of Speech Communi-
cation, California State University, Northridge, and Professor David Mellinkoff of the Univer-
sity of California, Los Angeles, Law School, for insightful comments as this project developed.
We also wish to thank Dr. Rudolf Flesch, and Professor George R. Klare of the Department
of Psychology, Ohio University, for helpful comments on the final draft. The advice of Presid-
ing Justice Robert Feinerman and research attorney Joanne Victor was especially valuable for
the research done at the California Court of Appeal (Second District) in Los Angeles. Mr.
Noshir Contractor, a graduate student at the Annenberg School of Communication, Univer-
sity of Southern California, was very helpful in the statistical analysis of the t-test data. Fi-
nally, the authors thank all the justices and research attorneys who took part in the study
project.
1. For a definition of legalese and an analysis of its linguistic features, see Benson, The
End of Legalese: The Game is Over, 13 N.Y.U. REv. L. & Soc. CHANGE 519, 522-27 (1985).
2. For the principles of plain English, see R. FLESCH, How To WRITE PLAIN ENGLISH:
A BOOK FOR LAWYERS AND CONSUMERS (1979); R. GOLDFARB & J. RAYMOND, CLEAR
UNDERSTANDINGS: A GUIDE TO LEGAL WRITING (1982); R. LANHAM, REVISING PROSE
(1979); R. WYDICK, PLAIN ENGLISH FOR LAWYERS (1985).

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