The Social Barriers of The Official Style in Legal Writing - Emma Guthrie

Writing in the legal field portrays a great deal of characteristics that are considered to be representative of official style writing. In order to understand why things are written the way that they are, we must aim to identify the basics of a piece: why was it written, or what is the purpose? Who wrote the piece, and who did they write it for? Being aware of who the intended audience is as well as for what reason writing is composed can tell us a great deal about the literary and stylistic choices that were made in the writing process. In addition, background information can prove to be beneficial.

Legal opinions, once a case is fully processed and finalized, are public information. But, if this writing is intended to be read by the average citizen, it would seem that the writing of these documents should reflect this, demonstrating reading ease for the average education level.  More frequently than not, this isn’t the case. Brown v. Board of Education is a US Supreme Court case that was decided in May of 1954, nearly 65 years ago.  This case is one that is commonly known by American people, as it marked an important legal stride for our nation in terms of civil rights for the African American community. I acquired this opinion from the Cornell Law School Legal Information Institute. The purpose of this particular institute is to promote a more easily accessible resource for the public to gather information about legal matters that they should be aware of as citizens of the United States. The site receives about 15% of its funding from Cornell Law School itself, but also relies upon the donations from the public in order to provide the most effective information possible. Interestingly, the goal of this institute is to offer more comprehendible legal information to the public, but it’s run by an ivy league university, which indicates that the creators of it were likely privileged in terms of their education, achieving a much higher grade level than the average US citizen.

The reason I chose this particular piece to demonstrate the complications of official style writing, is because it was a case that outlined an issue of whether or not the “separate but equal” doctrine, which was decided in application of public transport via the Plessy v. Ferguson case, was a constitutional violation of the Fourth Amendment right to equal protection in the realm of public education. So essentially, the segregation of “negro” children from white children in public schools was being considered legally sound due to the fact that although the educational facilities were separate, they offered all children an equal educational opportunity.  The fight against this, by black children represented by their legal council, was that it was impossible for “children of color” to experience an equal educational experience when they were subjected to an inferiority complex by being restricted to participate in the same classrooms as white children.

The reason I have offered so much detail regarding the foundation of this case before getting to the textual analysis, is because it’s crucial to note that this case outlined a social issue of exclusivity by race in education. And, while we are no longer legally permitted to segregate classrooms or any public places on the basis of race, we do exclude certain demographics in the way that we write by the choices we make stylistically by use of the official style.  When the official style is used, it tends to complicate meaning at times, which allows only the understanding of readers who are familiar with such writing and therefore excludes the understanding of those who are less educated. At the time in which this court opinion was written, the African American community was most certainly less educated than it’s white counterparts due to historical restrictions on education.  It seems that the opinion of Brown v. Board of Education would be especially crucial to this population of African Americans, however, but being that it was written with official style, the proportion of people that could likely read it with full comprehension was likely rather low.

            Let’s look at the results of a readability study on this piece.  Most legal opinions are much longer than this one, which is only about 3 and a half pages long, counted at 4,239 words. The average grade level of this piece is 11.5, with a readability rating of 42%.  The two main critiques offered by the readability site to lower these levels, was to eliminate the use of passive voice and lengthy sentences that also tend to be complex. In other legal writing, I might expect these statistics to be even higher, but because this case was more straight forward than the usual, it required less use of legal jargon. That being said, we know that the average grade level of adults in the United States today is 7. This document exceeds the average reading level by 4.5 grade levels. And, what’s more, this case dealt with children as it’s plaintiffs: children who were younger than a grade 7 education level; if not even the participants in the case could read and understand this document on their own, then what’s the point?

            Below is an excerpt from the opinion that was marked up by the readability site to indicate the potential issues noticed in terms of how the official style is complicating clarity. In purple, “very long sentences” are indicated.  In blue, “long sentences” are indicated. In green there is a hidden verb. In red, passive voice is used. Finally, “substantially” is highlighted in pink to show that adverbs should be avoided when possible.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. [p487] In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a non-segregated basis. In each instance, [p488] they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Fergson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The site’s main suggestions include changing some of the long sentences into bulleted lists or splitting them into shorter, simpler sentences, and using more active voice to demonstrate who or what is doing an action and who or what is receiving it. These are pretty straight forward ways in which the writing could be clarified for some readers, but yet it was not; why? I think there are a couple of different complications that come with legal writing that can be pointed to when it comes to the continued use of the official style. 

Mainly, there is a social barrier between those who are educated and those who are not, in our society. I think there is certainly truth in the fact that those who work in the legal field, of whom are those who write these sorts of documents, are in positions of authority, and write in such a way that demonstrates this superiority, whether intentionally and consciously or not. In addition to this, so much of the legal writing that’s written in the court is read mainly by others who work in this field. If one writes and reads writing in this field, they are likely going to be familiar with the use of official style, and be accustomed to both writing in this way and reading writing of this sort. Finally, there are times in which legal writing is obfuscating, meaning it’s intentionally confusing or hiding a meaning from it’s reader.  The reason this is sometimes the case is because lawyers and other legal workers often want their clients to agree to a deal or sign a contract, but if the client cannot understand what’s written, the lawyer can give them a verbal explanation that differs from what’s actually written in order to get their client to comply. Evidently, instances such as this carry very complicated issues of ethicality.

Although choices of style in writing seem to be of little significance at times, they almost always are executed for a particular reason that relates to their audience and purpose.  In being able to understand these details, there is much to be learned about the world of written communication and how it’s utilized to control other social issues that appear unrelated. As you can see from the analysis I’ve provided, there is so much to see below the surface of writing; how deeply you analyze will simply depend on how much you are ready to discover about the world around you.