Chapter Seven
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Unfortunately, non-specialists representing themselves in court do not
know how to determine what items need to be retained from cumbersome
forms and what items can be thrown out. Furthermore, some judges
actually prefer to see all or most of the forms’ original language when
seeing pleadings from non-specialists, presuming (often wrongly) that, if
they have the words in there, then the non-specialists have at least
considered those potential aspects of the case.
As can be expected, the popular press routinely denounces legalese,
and average citizens usually contemplate with horror the thought of going
to court on their own. Unfortunately, as noted above, they usually have no
other choice.
Mixed in with the problem of bad writing is the problem of specialist
terminology that is simply difficult for non-lawyers to understand. For
many years, the American legal profession was subjected to training in law
schools that stated that the “language of the law” was not translatable into
ordinary terms. This arose from writings of such imminent scholars as the
legal positivist H.L.A. Hart, who referred to an “internal” viewpoint of the
law, held by those within the legal community, as opposed to an “external”
viewpoint, held by those outside the legal community (Hart 1961: 180-
189). That viewpoint has now been fairly well rejected by academic legal
scholars (Minda 1995). Nevertheless, the opinion has held sway among
lawyers, especially older ones trained before the 1990s. Sometimes, those
lawyers, as well as those lawyers who see plain language translations as a
threat to their livelihood, have created a backlash when courts and others
have sought to do plain language translations of court forms.
Current state of plain language work
Starting with Cicero, calls to write plainly so that people can understand
what they read have been made. Studies of “plain language” were made by
scholars during the late Nineteenth and early Twentieth Centuries.
Rudolph Flesch, a student of one such scholar and a proponent of clear
writing, wrote a popular book in 1955 called, Why Johnny Can’t Read:
And What You Can Do About It (Flesch 1955), along with several other
texts on good writing, including his 1951 book, How to Test Readability
(Flesch 1951).
In 1975, he and J. Peter Kincaid created the Flesch-Kincaid readability
test.^6 It was the first of several such tests created to determine the reading
(^6) An explanation of the Flesch-Kincaid Readability Test can be found at
en.wikipedia.org/wiki/Flesch%E2%80%93Kincaid_readability_tests