Plain English on trial.

"Human beings do not respond to abstractions, to that empty pedantry spangled in dull legalisms."(1) So writes Gerry Spence, the folksy trial lawyer with the fringed jacket who, in over 40 years of practice, has never lost a criminal trial.

In his books, Spence repeatedly argues that "human terms"--simple, everyday words that "create pictures and action and generate feeling"--are more persuasive than the "heavy, gray, lifeless, disgustingly boring word gravel" of legalese.(2) Though a long time coming, the legal community is now starting to recognize the limits of legalese and, as Spence advises, replace it with plain language in jury instructions and other trial communications.

Though tough enough for lawyers to read, most jury instructions--long-winded collections of complex sentences, excruciating detail, arcane definitions, and talmudic distinctions--are all but impossible for laypeople to absorb orally. Court TV anchor Nancy Grace, a former Atlanta district attorney who earned nearly 100 felony convictions without any losses, has even seen jurors turn to one another while listening to jury instructions and mouth the question, "What are they saying?"

Citing such scenes, Grace jokes that some judges lock the doors to their courtrooms before reciting jury instructions only to prevent jurors from bolting because of boredom and confusion. Their captivity notwithstanding, most juries do not understand jury instructions, according to many studies and reports completed since the 1970s.(3)

Instructions in capital cases

A variety of recent studies and trials, mostly conducted during the 1990s, have exposed the most serious consequences of misunderstandings from confusing jury instructions: their tendency to bias capital juries toward the death penalty.

Consider, for example, the sentencing of Lonnie Weeks Jr. for murdering a state trooper. While deliberating, the jurors twice asked the judge whether the sentencing instructions required them to give Weeks a death sentence or allowed them to give him a life sentence. In fact, sentencing instructions never require a death sentence. But instead of responding to the jurors' questions by clarifying their alternatives to the death sentence, the judge merely read back to them--verbatim--the same jury instructions that had already stumped them.

It is not surprising that the judge's readbacks--which one scholar described as more appropriate for a hearing-impaired jury than a confused one(4)--failed to clarify the jury's sentencing alternatives. How do we know? After the jury announced Weeks's death verdict, one juror stated that she had not even known about the available lesser sentences.(5) Moreover, this juror was probably not alone in her confusion; about half the jurors who participated in a mock trial were similarly confused by the same instructions.(6)

Would members of Weeks's jury have given him the death penalty even if they had better understood their options? We'll never know for sure. But their repeated inquiries about lesser sentences suggest that they had at least some ambivalence about the death penalty that was unfairly thwarted by the confusing sentencing instructions and the judge's inadequate responses to their questions. Moreover, because the death penalty must be unanimous, the vote of a single juror--any juror--would have been enough to save Weeks from execution.

The behavior of Weeks's jury was enough to convince four U.S. Supreme Court judges to a "virtual certainty" that the sentencing instructions had indeed unfairly confused the jury(7) and that there was "no reason to believe" that the judge's readbacks had resolved their confusion.(8) But because the Court's majority acknowledged only a "slight possibility" of juror confusion--not enough, they argued, to overturn Weeks's death sentence(9)--Weeks was executed last March.

Weeks's jurors were hardly the only capital jurors to misunderstand sentencing instructions. Indeed, about 40 percent of capital jurors wrongly believed that their jury instructions required them to impose the death sentence, according to interviews with 1,155 jurors from 340 capital cases in 14 states conducted by Northeastern University's Capital Jury Project.(10) These results confirm that in many cases capital jury instructions are no more than "a wishful illusion, a legal contrivance that doesn't work," says Bill Bowers, the project's director.

Origins of jury instructions

Why don't judges write jury instructions that laypeople can easily understand? Because most judges--compelled by fears of appeals--craft jury instructions by cutting and pasting passages from laws and appellate decisions that have already withstood legal challenges. The result is usually a hodgepodge of legalese that sacrifices brevity and clarity for invincibility. Pattern instructions, which have replaced made-to-order instructions in many jurisdictions, are usually similarly slapped together from tried-and-true, though unintelligible, documents.

But despite the impenetrable nature of most jury instructions, most judges are just as unwilling to clarify them for jurors as was Weeks's judge. Why? Because, according to Grace, they are usually "frozen in terror that a slip of the tongue or an incorrect answer to a question will cause a whole new trial." So they resort to readbacks of jury instructions that, though virtually useless, are less vulnerable to appeals.

How can the judicial system improve jury instructions without promoting appeals? By accurately translating pattern instructions into plain English. Since the late 1970s, when studies first started proving that jurors understand plain English jury instructions significantly better than legalese ones,(11) some federal courts and a handful of states have made at least some of their instructions more user-friendly.

Some states now also permit judges to distribute written copies of jury instructions to jurors, as recommended by the American Bar Association (ABA). And a few judges now project instructions on slides as they recite them.

But without doubt, the nation's most comprehensive overhaul of jury instructions is currently under way in California. This effort, which is part of a larger jury reform project inspired by the O.J. Simpson trial, recently produced hundreds of pages of draft civil and criminal jury instructions written in plain English.

Posted at http://www.courtinfo.ca.gov, the California translations replace long, passive, jargon-filled sentences with active, concise sentences using common words. They also help humanize the players by using pronouns, referring to the defendant and the plaintiff by their names, and replacing "the people" with "the prosecutor." But most important, the new instructions provide straightforward explanations of concepts. For example, replacing "proof beyond a reasonable doubt" with "proof that leaves you with an abiding conviction that the charge is true" and "a preponderance of the evidence" with "more likely than not."(12)

Peter Tiersma, a Loyola Law School professor who participated in the two years of negotiations that preceded the release of California's draft instructions, encourages no illusions about the difficulties of such efforts. "A large part of the problem with producing accurate plain English translations," he explains, "is that the statutes themselves are sometimes vague or ambiguous."

Nevertheless, Tiersma believes that the work and risks involved in such efforts are worth it because "if judges hide behind the language of the statute and jurors don't understand the law given to them, then the entire jury system is a travesty." Because California has traditionally been "a bellwether for jury reform," Tiersma predicts that its draft jury instructions, which will likely undergo several more years of tweaking before being finalized, may inspire other jurisdictions to follow suit.

But even jury instructions that are written in plain English will inevitably invite jurors' questions warranting more than mere readbacks. How can judges respond without inviting appeals? By, according to Grace, getting lawyers on both sides of the case to approve the answers before releasing them to jurors. Such bipartisan support, she says, can go a long way toward preventing reversals.

Just as jury instructions can be improved with plain language, so, too, can all manner of legal opinions and documents. Why have legal professionals traditionally stoked these communications with stilted legalese? Partly because of the myth that legalese is more precise than plain language, and partly because of the myth that legalese sounds more impressive and persuasive than plain English.

These myths have been repeatedly exploded in the writings of Joseph Kimble(13) of Thomas Cooley Law School and the late David Mellinkoff(14) of UCLA School of Law. Moreover, according to Grace, the outcomes of countless trials have proven that "juries vote for who they believe, and they believe who they understand."

The same principle holds for legal professionals as well. In a panel discussion sponsored by the ABA and Vice President Al Gore's National Partnership for Reinventing Government in Washington, D.C., last June, three judges(15) threw their collective weight behind the federal government's current efforts to produce plain English versions of regulations, letters, benefit statements, and other documents. Why? Because such translations are more logical and faster to read and they help judges master many of the unfamiliar issues that so frequently fill their agendas. In addition, Marion Ladwig, an administrative law judge at the National Labor Relations Board and author of a legal style manual, advocates plain English legal decisions because "the public has a right to understand decisions affecting them."(16)

Also documenting the appeal of plain English among legal professionals was a study that noted the responses of judges and research attorneys to traditional legalese versions of passages from legal documents and compared them to their responses to plain English versions of the same passages.(17) By statistically significant margins, participants rated the plain English passages more persuasive than the legalese ones, and inferred from them that their authors had greater professional stature than the authors of the legalese passages. Likewise, in a similar recent study conducted by Kimble, 80 to 86 percent of 1,462 judges and lawyers preferred plain English versions of paragraphs over legalese ones.(18)

To lawyers who fear that plain English would offend judges, Gerry Spence writes: "There are no rules that say lawyers must bore the judge. There are no rules against originality. There are no rules that say lawyers cannot write or speak from their heart. Passion has never been formally outlawed."(19)

Spence's originality and passion have occasionally inspired him to go beyond even plain language. Spence once filed a brief that consisted solely of a few pages of cartoons drawn by his brother.(20) Without so much as a single case citation, this unorthodox document won the decision for him.

In another burst of originality that gave new meaning to the term "poetic license," Superior Court Judge J. Michael Eakin recently used 59 metered couplets of verse to sustain a lower court's ruling ordering a man who had hit a poodle with his car to pay $1,150 for the dog's veterinarian bills. Eakin's decision concluded:

   So while counsel raises issues that are worthy and well taken

   in the end, we find the effort to apply them here's mistaken.

   We must conclude the issues raised do not warrant a new trial

   and all that we may offer now is this respectful, rhymed denial.(21)

The driver's attorney said he was considering an appeal--but not because of Eakin's poem. "I have no problem with a well-written opinion," he said.

Life-and-death question

Would members of Weeks's jury have given him the death penalty even if they had better understood their options?

Notes

(1.) GERRY SPENCE, THE MAKING OF A COUNTRY LAWYER 362 (1996).

(2.) GERRY SPENCE, HOW TO ARGUE AND WIN EVERY TIME 104-06 (1995).

(3.) See, e.g., Walter W. Steele Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C.L. REV. 77 (1988); Peter Meijes Tiersma, Reforming the Language of Jury Instructions, 22 HOFTSTRA L. REV. 37 (1993); REPORT OF THE TENNESSEE BAR ASSOCIATION COMMISSION ON JURY REFORM (1999), available at http://www.tba.org/news/juryreform.html.

(4.) Bethany K. Dumas, U.S. Pattern Jury Instructions: Problems and Proposals, 7 FORENSIC LINGUISTICS 49-71 (2000).

(5.) David E. Rovella, Confusing Jurors to Death, NAT'L L.J., Feb. 14, 2000, at Al.

(6.) See Stephen P. Garvey et al., Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases, 85 CORNELL L. REV. 627 (2000).

(7.) Weeks v. Angelone, 120 S. Ct. 727, 735 (2000) (Stevens, J., dissenting).

(8.) Id. at 738.

(9.) Id. at 734.

(10.) Personal communication with Bill Bowers, director of Northeastern University's Capital Jury Project, Aug. 14, 2000.

(11.) See, e.g., Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 COLUM. L. REV. 1306 (1979); Shari Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, 79 JUDICATURE 224 (1996).

(12.) In a study of jurors in Washington, D.C., nearly half defined "preponderance of the evidence" as meaning a "slow and careful pondering of the evidence." Kathleen E O'Reilly, Why Some Juries Fail, 41 D.C.B.J. 69 (1974), as cited in William W. Schwaizer, Communicating with Juries: Problems and Remedies, 69 CAL. L. REV. 741 (1981).

(13.) Joseph Kimble,Answering the Critics of Plain Language, 5 SCRIBES J. LEG. WRITING 51 (1994/1995); Joseph Kimble, The Great Myth That Plain Language Is Not Precise, BUS. LAW, July/Aug. 2000, at 48.

(14.) DAVID MELLINKOFF, THE LANGUAGE OF THE LAW (1962).

(15.) Stephen Williams, judge, U.S. Court of Appeals for the District of Columbia Circuit; Nancy Firestone, judge, U.S. Court of Federal Claims; Alan Heifetz, chief administrative law judge, U.S. Department of Housing and Urban Development.

(16.) THE NATIONAL LABOR RELATIONS BOARD STYLE MANUAL: A GUIDE FOR LEGAL WRITING IN PLAIN ENGLISH (2000), available at http://www.nlrb.gov/stylemanual.html.

(17.) Robert W. Benson & Joan B. Kessler, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 LOY. L.A. L. REV. 301 (1987).

(18.) Joseph Kimble, Writing for Dollars, Writing to Please, 6 SCRIBES J. LEG. WRITING 1, 19-20 (1996/1997).

(19.) SPENCE, supra note 2, at 105.

(20.) Id.

(21.) Pennsylvania Judge Rules in Rhyming Verses, Associated Press, July 14, 2000.

Lily Whiteman is a writer and plain language trainer with the National Partnership for Reinventing Government in Washington, D.C.