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Sarah Weber

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3 Myths about Legalese: Analyzing the Language of the Supreme Court

 

SCOTUS.jpgWhile the reputations of famous fictional lawyers vary widely, from Atticus Finch to Saul Goodman, there are a few stereotypes that follow the profession around — most of them negative at best.

We wondered what an objective analysis of legal communication would uncover about those myths, so we collected 35 Supreme Court rulings — opinions, dissents, and concurrences — from 12 justices, dating back to 1989. (While legal communication certainly takes on many forms, we chose SCOTUS rulings because they represent the very apex of the field.)

We ran the rulings through our proprietary analytics platform to see what we could uncover about the profession based on its language.

The results overturned three popular myths about lawyers:

Myth #1: Lawyers are impossible to understand

Legalese's bad rap - http://glasbergen.com/

“Legalese” has a bad rap: it’s widely considered to be full of archaic jargon, Latin buzzwords, and overlong sentences nobody without a law degree can understand.

So we were surprised to find that the Supreme Court rulings we measured scored in the top quartile for clarity. These documents were significantly clearer than the average political communication and written thought leadership in our database.

Clarity - SCOTUS.pngClear communication uses fewer words per sentence, fewer syllables per word, and lays out a traceable path from A to Z. And, sure enough, many of the Supreme Court documents we measured used accessible vocabulary, manageable sentence structures, and plenty of active verbs and pronouns to guide readers through the justices’ opinions.

Take the 2013 civil rights case, United States vs. Windsor. SCOTUS had upheld a lower court’s ruling that found certain aspects of the Defense of Marriage act to be unconstitutional. In his dissenting opinion, Antonin Scalia plainly outlined what he perceived to be the weaknesses in the decision, including the further complexities it introduced in further regulations (this case preceded the 2015 decision to legalize same-sex marriage nationwide):

Imagine a pair of women who marry in Albany and then move to Alabama, which does not "recognize as valid any marriage of parties of the same sex." When the couple files their next federal tax return, may it be a joint one? Which State's law controls, for federal-law purposes: their State of celebration or their State of domicile? Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State's choice-of-law rules? If so, which State's? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes.

Considering the purpose of these documents, the attention to clarity makes sense. Supreme Court rulings are teaching tools that explain how the law works and how it’s implemented, educating the public and the legal community, and providing a frame of reference for attorneys and lower courts facing similar situations.

We counsel our executive clients to focus on delivering a clear message in every situation but, in cases like legal rulings (or annual shareholder letters) where the goal is to make complex material accessible, that clarity becomes even more central to the success of the communication.

Myth #2: Lawyers can’t stop arguing

It’s part of the job description: lawyers are always trying to persuade someone — the judge, the jury, opposing counsel — and we assumed the same would be true in the Supreme Court rulings. That they’d use persuasive language in an attempt to sway public opinion.

In reality, these documents scored in the bottom 20 percent for persuasive language.

Persuasion - SCOTUS 2.pngAgain, this discrepancy comes from the underlying purpose of the document. While we could reasonably expect an attorney’s legal briefs or opening statements to use plenty of persuasive language, SCOTUS’ decision is final, and the focus is on elaboration, rather than persuasion.

Myth #3: “Lawyer” is just an alternative spelling of “liar”

Lawyer Liar.pngLawyers have a reputation for being slippery, so we wondered whether our analysis would find any markers of trustworthy language from the Supreme Court justices.

It did: the Supreme Court rulings’ collective score of 51 is right around our database average for trustworthy language, and outperforms the political communication and written thought leadership benchmarks.

Trust - SCOTUS.pngWe measure trustworthy language based on the linguistic patterns research has proven generate trust with audiences. These include patterns associated with deception, like excessive negative sentiment, and trust-building traits like accountability and a level of detail that’s cognitively taxing to convey. (For specifics, check out QC CEO Noah Zandan’s TED-Ed lesson, “The Language of Lying.”)

The SCOTUS documents are particularly adept at explaining not only what is happening, but why and how, and what’s not happening as a result.

For example, in his 1989 opinion on Texas vs. Johnson, Justice William Brennan frequently used a “not this, but that” format to explain how the court went about deciding whether burning the American flag falls under the protection of the First Amendment:

Johnson was convicted of flag desecration for burning the flag, rather than for uttering insulting words.

and

Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

and

The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others.

While an attorney would never counsel clients to offer these in-depth analyses on the stand (instead requesting they answer only the questions that are asked, in as few words as possible), the details Brennan and other justices provide in these types of documents indicate a level of knowledge and understanding that deceptive communicators cannot often convey.

The numbers may have surprised us at first, but when we dove deeper into the language behind the scores, we realized the Supreme Court analysis highlights an important lesson for every communicator: tailor your language to support the purpose of the communication. If your audience doesn’t need persuading, focus instead on what they do need, whether it’s to see you take accountability for your ideas, to feel included in your mission, or even to simply hear a good story. And regardless of the situation, make sure your message is clear.

We rest our case.



To find out how QC can use our communication analytics platform to help your leadership deliver best-in-class messaging, 
email us at info@quantifiedcommunications.com.
 

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