A modest proposal for improving clarity

The previous article on this blog briefly mentioned a lecture that was recently given by Lord Neuberger, the President of the UK Supreme Court.  Having now read the transcript of the lecture – available from the Supreme Court website here – here are some further comments.

One of the main themes of the lecture was the clarity of court judgments.  Several of the points that Lord Neuberger made can also be applied to the drafting of contracts.

In Lord Neuberger’s view, “judgments must speak as clearly as possible to the public”.  However, he recognises that in some cases, such as patent cases, it may not be possible to explain the facts very simply.  Similarly, “some issues of law are intricate, complex and hard to express simply.  But that is no excuse for judges not expressing themselves as clearly and simply as possible.”

These views echo IP Draughts’s views about contracts.  Wherever possible, they should be drafted in a clear, simple manner.  At the same time, there are certain aspects of contracts, eg the wording of liability clauses, that cannot be reduced to plain English because they raise complex issues of law.  Recognising the difference between complexity for its own sake, and necessary complexity, is an important part of the drafter’s toolkit.  Complexity for its own sake should be avoided.

In support of his theme, Lord Neuberger cited an American author, Joseph Kimble, who (as part of an academic study in 2003) rewrote a Michigan court judgment.  Lord Neuberger quoted the opening paragraph of the court judgment in both its original and revised form.  Version A read as follows:

Plaintiff Robert Wills filed a declaratory judgment against defendant State Farm Insurance Company to determine whether defendant has a duty to pay benefits under the uninsured motorist provisions found in plaintiff’s policy with defendant. Pursuant to the parties’ stipulated statement of facts, the trial court granted summary disposition in plaintiff’s favor upon finding coverage where gunshots fired from an unidentified automobile passing plaintiff’s vehicle caused plaintiff to drive off the road and suffer injuries. Defendant appeals as of right. We reverse and remand.

Version B read rather differently:

Robert Wills was injured when someone drove by him and fired shots toward his car, causing him to swerve into a tree. He filed a declaratory-judgment action to determine whether State Farm had to pay him uninsured-motorist benefits. The issue is whether there was a ‘substantial physical nexus’ between the unidentified car and Wills’s car. The trial court answered yes and granted a summary disposition for Wills. We disagree and reverse. We do not find a substantial physical nexus between the two cars, because the bullets were not projected by the unidentified car itself.

Version B was written by Professor Kimble.  He asked lawyers which they preferred.  They expressed a “strong preference” for Version B.  An excerpt from the Kimble paper, which explains his study further, can be found here.

Lord Neuberger, and before him Professor Kimble, are not focussing just on the words used.  They are also concerned about the structure of court judgments, including use of headings and other “signposts” and, in IP Draughts’ words, with telling an interesting story.  Similarly, in contracts, use of plenty of headings, an index in the case of longer contracts, and an interesting sequence of clauses, are all important in communicating the information that is to be found in the contract.  For example, in IP Draughts’ view, it is important to “get to the point” early in the contract, dealing with work and payment obligations before more esoteric points such as ‘boilerplate’ interpretation issues.  This goes against the practice of M&A contracts, in which interpretation clauses are typically set out immediately after the definitions, and are sometimes numbered as clause 1.2.

Lord Neuberger makes many other interesting points in his lecture, some of which are not so easily applied to contracts.  His comment about reducing the length of court judgments is one that probably can be applied to contracts, some of which are unjustifiably long.

The transcript of his lecture is well worth a read.  IP Draughts cannot resist pointing out the score that Lord Neuberger’s transcript gets in the Bla Bla Meter: 0.22.  This is perfectly respectable (a low score is good), but one can’t help feeling that if Lord Denning had written a similar speech, the score would have been lower.  Perhaps that is an unfair comparison.  Lord Denning was exceptionally clear in his writing.  His judgment in the case of Hinz v Berry, in 1970 (the famous case in which he starts, “It was bluebell time in Kent.”) achieves a score of 0.09.  This game can be played endlessly.  Version A of the Michigan judgment, above, scores 0.32, while Version B scores 0.19.  As one might expect.

2 Comments

Filed under Legal practice, News

2 responses to “A modest proposal for improving clarity

  1. Francis, on the Bla Bla meter, I would like to know the methodology, but find it coincides roughly with my impression of crispness and clarity. I think of it as a bit of fun, rather than something more profound.

    On Hinz v Berry, fair dos. I tried to find a speech of Lord Denning on the Internet, but failed, so fell back on the obvious example of one of his judgments. I was making no comment on the substance of the judgment. In light of your comment I will steer clear of this example!

  2. The Bla Bla Meter is, sadly, unexplained and so entirely opaque. I did study readability measures a while ago and the best research evidence is that text-only measures are, essentially, bunk. A lot of factors influence how readable material is and many of those are outside the text. For example: children will read “harder” books if they are more strongly motivated to do so by their attraction to the plot or characters.

    I was interested because I was looking at readability of mathematical texts where all sorts of classic measures are simply hopeless (word or sentence length is pretty much meaningless for instance).

    A very good – but expensive – measure is the “Cloze” test. You omit one token (word in the case of most written material, but this can be extended for mathematics) in a regular pattern (eg 1/5) and then examine how well readers can fill in what is missing. That provides an excellent measure of readability but needs real people to carry it out.

    My own view is there’s no substitute.

    Can I also ask that Hinz v Berry is not constantly wheeled out as an example of good writing. It is not. It is a very poorly reasoned judgment. “We can only interfere if it is a wholly erroneous estimate. I do not think it is erroneous. I would dismiss the appeal.” is not really showing working.

    One feels that the judge was enjoying himself with the “bluebell time” narrative but really couldn’t be bothered with explaining his conclusion.

    What is worse: the case dealt with an appalling incident that must have profoundly affected the plaintiff’s life. The appeal decision must have come as a slap in the face. Denning’s glib and amusing opening almost certainly made things worse. His complete failure to offer anything to the plaintiff – for example sympathy – is quite stark. Most modern courts would make it clear they sympathised with the plaintiff but on legal grounds (which would be clearly explained) they could not find for them.

    So Hinz v Berry is, in my view, exactly the kind of thing we do not want judges to produce.

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