UPDATE | By Kristen Levins, Civil Justice Attorney, Texas Access to Justice Commission
The average American has a seventh-grade reading level , which makes it next to impossible for most people to read a legal document and actually understand it. The importance of a litigant’s ability to comprehend what is happening in their own case was a major theme of the 2017 Self-Represented Litigation Network Spring Board Conference held this February. For the public to have meaningful access to our courts, litigants need to be able to understand everything from how to initiate a case, why service of process is necessary, what is going on in court, and how the resolution and court order obtained affects them.
Documents should be drafted in plain English to maximize the public’s ability to understand them, preferably between a 5th and 9th grade reading level. Writing and speaking in plain English does not mean “dumbing down” the language. It simply means explaining things in a way that a non-expert can comprehend. Doctors and nurses speak to each other in medical jargon because they have specialized training and knowledge. Judges and attorneys do the same with each other. But in both instances, when a non-expert (a patient or a self-represented litigant) is involved, expert language skews the playing field, complicates communication, and leads to frustration for everyone involved.
Professor Kelly Tait, Adjunct Professor at University of Nevada Reno, and Judge David Suntag, Vermont Superior Court Judge (Act/Ret) discussed the importance of procedural fairness in our court system. Procedural fairness is the view that it’s important for those in authority to be seen as exercising their power fairly. It has four key components that can be summed up as understanding, voice, respect, and neutrality.
1. Understanding – Does the litigant understand the process & how decisions are made?
2. Voice – Did the litigant have the chance to be heard?
3. Respect – Was the litigant treated with dignity and respect?
4. Neutrality – Was the judge trustworthy and trying to be fair?
The use of plain English is the first step in ensuring that a case is procedurally fair. Professor Tait and Judge Suntag underscored the need for judges to provide litigants with a roadmap of their hearing in plain language so that everyone involved would know what was going to happen and when it would happen. Litigants who understand how their case will proceed have greater assurance that they will get their turn to tell things their way, which promotes a feeling of fairness. It’s not surprising that litigants who feel that the process was fair are more likely to comply with court orders.
Conversely, a roadmap becomes ineffective when it is burdened by unnecessary technical terms – like plaintiff/petitioner and defendant/respondent when using the parties’ names would suffice. When judges uses legalese, litigants are more likely to feel they are being treated with contempt and disrespect. They are less likely to believe that the system is fair to anyone other than attorneys and less likely to comply with court orders.
Access to the justice system becomes more feasible when judges, attorneys, and court personnel assist in the communication process by using plain language. This simple switch vastly improves the chance that everyone gets the legal help they need.
Mindlin, Maria. “Plain Language Writing.” Lecture, SRLN Conference, San Diego, CA, February 24, 2017