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Illustrative Forms of Class Action Notices: Detailed Discussion of Methodology
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 in terms of overall ordering of the sections and implicit statements of hierarchy in the ordering of claimants' options,
- checking to see that the formatting is easy to read and that the notice highlights statements that call for action, 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 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 Methods and Findings
We conducted four focus groups in February and March 2001. We contracted with Nicole Yakatan of Yakatan Focus Group Moderation and Market Research to moderate the groups and prepare detailed findings. She recruited focus-group participants from a wide range of nonmanagerial occupations in the Baltimore metropolitan area. Each participant 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 products containing asbestos and the other about claims of fraud in the purchase of stock. We first asked each focus group participant to read either a full nine-page to ten-page class action notice or a three-page to four-page summary of the notice. They then answered a few written questions about the content before the group discussed the notice. We then gave individual participants either a full notice or a summary--whichever one they had not yet seen--for comparison. We observed uneasiness with the legal nature of the documents regardless of the first document presented. Most people perceived both the notice as well as the summary to be "long" or "complicated" and wanted to set them aside to read later. Participants' estimates of time they would need to study the document were basically the same whether it was the summary or the full notice.
We found that converting the notice to plain language is not the only way to improve communications with class members. Our focus group experience tells us that attorneys and judges can significantly improve class members' motivation to read and comprehend class action notices by changing the language, organizational structure, format, 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.
When focus group members played the role of prospective class members who had received a class action notice, their own attitudes and perceptions about class action lawsuits, attorneys, and even justice appeared to influence their ability to comprehend the specifics of class action notices. Such factors appeared to drive the way people approached the issues of whether and how to read a notice. For the most part, participants' attitudes about and comprehension of our notices and summaries revealed broad acceptance of the structure and content of the material we presented. The clarity and logic of the notices seemed to enhance their ability to participate in the discussion.
Most focus group participants displayed a very general knowledge of class action lawsuits but were relatively unfamiliar with class action notices. Their preconceived notion of a notice 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. Many focus group members expected a professional-looking package, which they described as a standard white, flat envelope, ideally with the return address of the court or a law office and, perhaps, a logo. 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." 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 may 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 did not automatically improve motivation or comprehension in comparison to a full notice. In fact, most participants expressed a preference for more complete information, as long as it is readable and not excessively long.
Participants showed an ability to comprehend the topics in the full notice more accurately. 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 that makes specific points,
- Detailed table of contents,
- Question-and-answer format,
- Summary chart of important information, and
- Color-coded response forms.
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.
As a further test of whether notices in the style of the Center’s draft notices would improve comprehension, we conducted a survey of stock owners. We compared the participants' comprehension of the Center’s securities class action notice with their comprehension of an "original" notice that had been used in a closed case. Based on our pilot test, we selected the original notice that was the clearest of the securities notices we had reviewed. Given funding limitations, we could not draw a random sample and instead located a nonrandom group of stockowners by using lists voluntarily provided by investment clubs identified through the Internet. Participants who received the Center-designed notice had significantly higher comprehension than participants who received the comparison notice.