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.