Last updated: 4 August, 2020
By Ivy B. Grey
Legal writing is intellectually complex—both for the writer and the reader. At its core, legal writing builds relationships among ideas. Litigators will use pieces of caselaw from many sources to state a simple three-element claim. And transactional lawyers will manage legal implications from real estate, tax, and contract law, among others, to draft a short agreement. This building and combining of ideas, that are themselves complex, means that all legal writing intrinsically and inescapably has a heavy cognitive load due to the difficulty of the subject matter.
Although legal writing is inherently complex, your writing doesn’t have to be difficult to understand. There are many ways you can make your writing easier for the reader both in the text (intrinsic cognitive load) and in the way you present that text (extrinsic cognitive load).
The science behind working memory and cognitive load theory tells us that we should simplify legal concepts and make their connections clear if we want readers to understand. Professors Andrew Carter and Laura A. Webb applied working memory and cognitive load theory to legal writing, reading, and learning.
The idea is that working memory allows us to temporarily store new information and mentally manipulate, use, or build on it, and connect it to prior knowledge. It’s key to learning, creating long-term memory, and performing complex tasks. But working memory has limited capacity.
When we read, according to Professor Webb, we process information in two stages, using our working memory:
The greater the intellectual complexity of the concepts, the more working memory it requires. Use tools like American Legal Style for PerfectIt to ensure that your writing is error-free. PerfectIt is inexpensive so you can afford to buy it for yourself. Your reputation is worth it.
Since the subject matter is dense and readers must apply critical reasoning and reach complex conclusions, the presentation and organization of legal writing must compensate for its density. In other words, the extrinsic cognitive load can be reduced to compensate for the intrinsic cognitive load. If you add in long sentences, legalese, Latin, and other writing flourishes that lawyers use to show off, readers will be overwhelmed. So the more complex the subject, the clearer the document should be to minimize the overall cognitive load.
That means documents must be presented simply, and organized effectively. Organize concepts logically so the connection between each paragraph and each sentence is clear. Steven Pinker calls this the “arc of coherence.” Professor Carter suggests grouping concepts together in smaller “chunks” by conceptual relationship and drawing on contextual knowledge from the document structure.
Intentionally complex legalese is not the only thing that adds to cognitive load. Anything that impedes understanding is a problem. Even mundane disruptions such as typos, missing punctuation, and inconsistencies can add to cognitive load and derail understanding. So, to minimize disruption and help your reader reach the point of critical reasoning, Professor Webb suggests zealously editing for “missing punctuation, grammar oversights, awkward syntax, and semantic inconsistencies[.]”
Rigorous editing and proofreading makes a difference. If even small errors like typos, missing punctation, and inconsistencies can prevent your reader from fully understanding your position, start by fixing those.
As a lawyer, the time you have available for proofreading is limited. So consider how much more you could achieve in that time with software that picks up those little errors. PerfectIt with American Legal Style can help make sure your documents are free of the kind of mistakes that increase cognitive load and reduce understanding.
PerfectIt with American Legal Style checks for legal-specific typos, enforces consistency, and conforms your writing to the guidance found in The Redbook: A Manual On Legal Style by Bryan Garner and Black’s Law Dictionary. PerfectIt also checks for formatting, spacing, spelling, and capitalization errors in the court and reporter names in Bluebook citations. It will help you catch those errors that confuse readers and keep them from seeing your meaning.
When readers get stuck trying to interpret what your sentences mean, they don’t reach the “post-interpretive process” where learning and reasoning occur. Without reaching this point, your readers cannot be persuaded, they will not understand the deal, and they will not be comfortable accepting your conclusions. That’s a failure of legal writing.
The steps to make sure readers truly understand your writing begin early in the drafting process. Structure your arguments clearly and use short sentences. Steer clear of legalese and Latin. And remember that small errors affect understanding, too. Use PerfectIt to help you eliminate those stumbling blocks in less time. There’s a free trial available, so click to get PerfectIt now.
Ivy B. Grey is the creator of American Legal Style and an advisor to PerfectIt. Her work on technology competence and ethics has made her a respected thought leader in legal tech. In 2018, Ivy was recognized as a FastCase 50 Honoree and a Women of Legal Tech, class of 2018 honoree by the ABA Law Technology Resource Center.
Ivy practiced in the field of corporate bankruptcy law for ten years before making her transition to full-time legal tech in November 2018. Ivy received her LL.M. from St. John’s University School of Law and J.D. from the University of Houston Law Center.