“Simplicity” is the new mantra in endeavors influenced by psychology’s half-decade-old wave of cognitive-fluency research. Understanding why the mantra is an over-simplification should also help counter some simplistic plain-writing advocates.
Cognitive fluency refers to mental ease, including ease of understanding, and it has been found to have striking benefits for at least some forms of communication, such as marketing, where fluent writing and branding have sometimes more than doubled sales. Experiments manipulate the cognitive fluency of written material by using small words, short sentences, familiar concepts, and clear fonts, among other means. The resulting fluency often dramatically increases the message’s acceptability. Not only is it better understood but is also better liked.
As in Julie A. Baker’s application of fluency research, presented in her article “And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate”—which claims cognitive-fluency research best answers legalese’s proponents—appliers of these scientific results have largely overlooked the recent research focus on cognitive disfluency, which also carries striking benefits,. (HT: Lawrence B. Solum, The Legal Theory Blog [Baker essay].) While Baker nods to research favoring disfluency, her argument that cognitive-fluency research argues for plain writing discounts it. The pro-fluency research surprises by the strength of fluency’s effects, including the positive effect of a corporation’s simple name on its stock prices. But the disfluency research has its share of startling results, such as the recommendation—flying in the face of plain-writing dogma—that school texts should be harder to read. Disfluent writing, experimenters report, is read with greater retention. Similarly, cognitive psychologists point out that disfluent company names build greater customer loyalty, despite or because of the customers’ initially reluctant embrace. Disfluent writing engenders reasoning deeper and more abstract and thinking less stereotypical (an explanation for asiatic style’s effectiveness with an unfriendly court).
Fluency’s bipolarity is important for legal writing because it shows that cognitive fluency isn’t identical to or even correlated with the writing Virtue Clarity: fluency isn’t necessarily Virtuous. This interpretation differs from most marketers adopting fluency as their mantra and from Baker, according to whom fluency is virtuous except in narrow circumstances—most notably, summarizing opponent theories. The research favoring some disfluency demonstrates how fluency diverges from Clarity: often, somewhat disfluent writing is clearer than the most fluent—when, for example, Clarity benefits from reader’s construing the topic abstractly. (Construal-level theory is another topic of considerable research in cognitive psychology.) Fluency theory offers to integrate the accounts of truth and beauty, and the analogy between the two implies that, as with beauty, the optimal fluency is a compromise between fluency and disfluency, although where that compromise is found may depend on the subject, such as whether it is best understood when construed abstractly or concretely. A recent explanation of fluency effects maintains that absolute fluency isn’t the relevant factor when fluency enhances understanding or persuasiveness; but rather the relevant factor is fluency relative to readers’ automatic expectations.
The desirability of fluency in that pure form advocated by the marketers and some plain-writing proponents—those who would be flummoxed to discover that students might learn more from harder-to-read textbooks—is rebutted by counter-examples, such as these: If sheer fluency is desirable, why do legal writers struggle to avoid brute repetition? If we are attracted to the fluent, how is it an author like William Faulkner—with his complex, lengthy sentences—is the most effective American fiction writer? The automatic expectations of fluency and disfluency are yet uninventoried, but I conclude long sentences and other complexities create an expectation of disfluency, contrasting with the relative fluency of a well-constructed long sentence, whereas blatant repetition creates an expectation of fluency, offsetting fluency's perception.
When to modulate fluency versus disfluency remains subject to the writer’s intuition, although the psychological research can help refine a writer’s choices. But direct advice on how to modulate fluency versus disfluency follows from the Disputed Issues writing-Virtues framework. To write disfluently for Clarity’s sake, tilt the language toward greater Concision, rather than decrease fluency by arbitrary means, such as unclear typography or convoluted sentences. The advantages of selective disfluency don’t justify legalese, which not only is overly disfluent but also verbose.