From The Conversation:
You may not realise it but you are signing legal agreements all the time. Think of all those “terms and conditions” boxes you tick when you buy new software or travel insurance. How many times have you tried to read these and not really understood that they were saying?
You’d not be alone in that. Our research outlines how insurance policies are incredibly difficult to understand. So difficult that you need a PhD to understand them.
Yet consumer law requires legal agreements to be transparent. This means that they need to be in plain, easy to understand language. If legal documents are not written in plain English, then they may not be legally binding – or at least the parts that are not transparent won’t be. So does this apply to those contracts you sign on a regular basis? And, if so, how do we measure how readable something is?
. . . .
Over the years, hundreds of different readability measures have been created for English and other languages.
. . . .
The choice of measures is complicated by the fact that different measures calculate readability in different ways. But broadly speaking the measures that we used are based on the number of words in a sentence, as well as the number of syllables or number of letters in the words. If a document has lots of words with multiple syllables and sentences with more words, then its readability will be less than one that has words with fewer syllables and shorter sentences.
There are lots of online tools to calculate readability. Even tools that try to produce the same measure, like the Flesch-Kincaid reading scores, can have significant discrepancies. One of the reasons for this is how the software counts number of words and syllables. For example, does the program count hi-tech as one or two words?
. . . .
All of the policies we tested needed a very high level of education to be fully understood. The most readable policy required almost 14 years of education (high school plus one year of university), while the least readable needed 19 years (PhD level). This suggests that at least some parts of these policies could be challenged on grounds of their transparency – no matter whether they are fair or not. This has important implications for consumers.
Based on these common measures, a reasonable conclusion might be that these policies are not written in clear and plain English. Not so in the UK. Readability scores do not have any legal effect in the UK – there isn’t a target score to beat.
This is because European case law requires courts to consider whether the contract clearly communicates its effects. A reading score may be good evidence that the effects cannot be understood by a consumer, but are not seen as the determining factor.
. . . .
In the US, however, there is a trend towards using reading scores to assess contracts. In Texas, for example, consumer banking contracts have to meet prescribed Flesch-Kincaid reading scores calculated by Microsoft Word. Similarly, in South Carolina loan contracts have a Flesch-Kincaid score of no higher than seventh grade.
PG decided to check some readability scores. He checked several documents by calculating their Flesch Kincaid Reading Ease scores. Fortunately, he quickly located a helpful website that did the calculations for him – here’s the link.
MS Word 2016 and Office 365 have an Editor feature, but, like the early versions of so many Microsoft features when first released, they’re a little clunky.
So, here are the documents and their Flesch Kincaid Reading Ease Score and Flesch Kincaid Grade Level Scores:
PG’s Standard Retainer Agreement for his Clients:
Flesch Kincaid Reading Ease – 47.4 (0-100 scale, higher is better)
Flesch Kincaid Grade Level – 10.9
PG’s standard introductory email sent to New Clients:
Flesch Kincaid Reading Ease – 66.8 (0-100 scale, higher is better)
Flesch Kincaid Grade Level – 7.1
Amazon KDP Terms and Conditions
Flesch Kincaid Reading Ease – 54.8 (0 to 100, higher is better)
Flesch Kincaid Grade Level – 9.5
Barnes & Noble Press Author Membership Agreement
Flesch-Kincaid reading ease score – 40.3 (0-100 scale, higher is better)
Flesch Kincaid Grade Level – 14
Big Five Publisher – A
Flesch-Kincaid reading ease score – 38.8 (0-100 scale, higher is better)
Flesch Kincaid Grade Level – 14.5
Major Publisher – B
Flesch-Kincaid reading ease score – 27.5 (0-100 scale, higher is better)
Flesch Kincaid Grade Level – 19.7
Major Romance Publisher
Flesch-Kincaid reading ease score 33.1 (0-100 scale, higher is better)
Flesch Kincaid Grade Level – 16.7