Federal Judicial Center
Background on the Federal Judicial Center's Project
to Draft Plain Language Class Action Notices
Background on the Federal Judicial Center's project to draft plain
language class action notices
Overview of methodology
At the request of the Subcommittee on Class Actions of the Advisory Committee
on the Federal Rules of Civil Procedure, the Federal Judicial Center developed
four hypothetical illustrative notices of proposed class action settlement
(including notice of right to exclusion and hearing). The notices are
works in progress. The most recent drafts are available for your review
and comment here:
We began this project by studying research and commentary on the plain
language drafting of legal documents. Then we created hypothetical notices
by selecting the best class action notices we could find, rewriting them
in plain language, restructuring their format, pilot-testing them for
comprehension, having them evaluated by a lawyer-linguist for readability,
and presenting them to four focus groups.
Lawyer-linguist's recommendations
Professor Lawrence M. Solan of Brooklyn Law School, a lawyer with a Ph.D.
in linguistics, reviewed earlier drafts of the illustrative notices and
suggested ways to enhance the "plain language" effect. His review
included
- analyzing how sections are organized—for
overall ordering and for tacit statements of hierarchy in the ordering
of claimants' options,
- checking to see that the formatting is easy to
read and that statements that call for action are highlighted, and
- reviewing the length of sentences and use of
passive voice, nominalized verbs, and other modes of expression that
may decrease comprehension.
Professor Solan's recommendations included
- using topic headings (he agreed with our suggestion
that the headings be in question form),
- rearranging materials to correspond more exactly
with section headings, and
- using the personal "you" rather than third-person
references to "claimants."
Focus group findings
The Center conducted four focus groups in February
and March 2001. Nicole Yakatan of Yakatan Focus Group Moderation and Market
Research moderated all four and prepared a written report with detailed
findings.
Yakatan recruited focus-group participants from a wide
range of nonmanagerial occupations in the Baltimore metropolitan area. Participants
had at least a high school education and no more than a college degree.
Each group had six to nine participants, an appropriate number for this
type of qualitative research.
We explored reactions to notices and asked about changes that might
improve comprehension of, and motivation to read, the notices. We tested
the outside packaging, inside layout, organizational structure, and language
of the notices. We also tested comprehension aids, such as a chart listing
claimants' options, a question-and-answer format for the notice text,
and color-coded response forms.
Participants examined two hypothetical class action notices, one about
exposure to asbestos-containing products and the other about claims of
fraud in the purchase of stock. We tested shorter summaries of the notices
as well, presenting them either before or after the full notices.
We found that improvements need not be limited to converting the notice
to plain language. Our experience with the focus groups indicates that
comprehension of class action notices can be significantly improved through
deliberate changes in language, organizational structure, formatting,
and presentation of the notice. Even small changes in the format and presentation
of the notice, such as using a cover letter or caption or colored forms,
appeared to increase a reader's motivation to read and understand the
notice.
Our examination of the attitudes about and comprehension of the notices
and summaries illustrated broad acceptance of the structure and content
of the material we presented. When people playing the role of prospective
class members received a class action notice, their own attitudes and
perceptions about class action lawsuits, attorneys, and even justice appeared
to influence comprehension. Such factors appeared to drive the way people
approach the issues of whether and how to read a notice.
Most focus group participants displayed a very general knowledge of class
action lawsuits but were relatively unfamiliar with class action notices.
Their preconceived notion was almost totally negative; they expected to
find wordy legalese that would be difficult or impossible to understand.
They were not eager to tackle any type of legal document and said they
are flooded daily with "junk mail."
A threshold challenge is to get potential class members to open and read
a class action notice. The focus groups illustrated the importance of
presenting a professional-looking package: a standard white, flat envelope,
ideally with a logo and postage stamp. Several members indicated that
a postage stamp on the envelope (rather than a metered mail indicator)
added a personal touch and would encourage recipients to open the envelope.
Most participants reacted negatively to junk mail lingo on the envelope,
such as "You may be entitled to ..." Generally, participants
preferred direct declarations of the envelope's contents such as "Notice
of Proposed Class Action Settlement." Participants said that a U.S.
District Court return address would motivate them to open the envelope
more than would an attorney's return address or a return address using
the term "Class Action Administrator." However, part of the
motivation to open a notice from the court arose out of fear of the consequences
of not opening it.
Another challenge is to convince people to read and act on the class
action notice rather than throw it away. A first impression must persuade
readers that they have a stake in the class action and that they will
be able to comprehend the notice. One of the most significant findings
from the focus groups is that a short summary of the class action was
not a panacea for motivation or comprehension. In fact, most prospective
class members expressed a preference for more complete information, as
long as it is readable and not excessively long. The notices tested appeared
to succeed on those counts, primarily as a result of the following elements:
- Non-legal, plain language throughout,
- Concise opening page making specific points,
- Detailed table of contents,
- Question-and-answer format,
- Summary chart of important information, and
- Color-coded response forms.
Each focus group participant was given either a full nine-page to ten-page
class action notice or a three-page to four-page summary of the notice
to read first. They then answered a few written questions about the content
before group discussion of the document. Participants then received either
a full notice or a summary--whichever one they had not yet seen--for comparison.
We observed uneasiness with legal documents regardless of the first document
presented. Most people perceived the notice and summary to be "long"
or "complicated" and wanted to set it aside to read later. Estimates
of time needed to study the document were basically the same whether it
was the summary or the full notice.
Comprehension of the topic was slightly more accurate with the full notice.
More importantly, however, generally readers greatly preferred the full
notice to the summary, finding it easier to peruse and understand, despite
being longer. Many factors, including the complexity and emotional weight
of the subject (for example, asbestos versus corporate stocks) appeared
to affect participants' understanding of the notice and their approach
to it.
Next steps
Our study of plain language class action notices is continuing.
We are analyzing our survey of groups of stock owners. That survey used
various versions of the notice for a securities class action case. We
will compare the participants' comprehension of our plain language versions
with their comprehension of the original notice. The original notice was
the best of the stock notices we reviewed, but it was not subject to our
plain language revisions. Given funding limitations, we located a nonrandom
group of stock owners by using lists voluntarily provided by investment
clubs identified through the Internet.
Posting the current drafts to this
site is our next step in gaining feedback on the advantages and disadvantages
of notice format, language, and content. After we make the changes to
the draft illustrative notices suggested by our survey research and comments
received, we will revise the notices as necessary. We then plan to post
the revised illustrative notices on this
Web site, along with our final study report. We will also plan to
continue revising the notices as necessary based on feedback we receive.
Opinions expressed in these materials are those of the authors, and not
necessarily those of the Federal Judicial Center.
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