Monday, May 24, 2010

“Good enough” consumerism and the myth of imperfectibility

Bloggers' reactions to "good enough" consumerism reveal the problems that keep legal writing inferior. Good-enough consumerism is fascinated by qualitative changes in our tastes attendant on changes of mere degree in production and delivery efficiencies. The paradigm is the rise of the MP3 recording medium, which allows high compression ratios but reverts fidelity to the cassette-tape era.

Professionals espousing work-product quality could resent comparisons with least-common-denominator recording media, but the predominant reaction among bloggers isn't to challenge but to avoid, to find the legal loophole that escapes the good-enough standard's obvious implications. Carolyn Elefant interprets the good-enough concept by denying its obvious meaning, that consumers evaluate services with an eye to convenience and economy, to the derogation of traditional indicia of quality. "[M]y take away from the Wired article isn't that cheap and simple means compromising standards." Compromised standards are exactly what the Wired article means because it says so: "Having it here and now is more important than having it perfect." Another blogger, representing the legal-writing field itself, denies good-enough consumerism's implications instead of its premise. Wayne Schiess acknowledges firms crowd lawyers' time for producing quality work, and he suggests the solution isn't to settle for producing bad work but to strive for excellence, despite the obstacles precluding its achievement. Wayne's sophistic position changes the argument's subject. Where the problem is that legal writers have too little time to produce excellent work, Wayne offers no direct advice on what they should produce; instead, he addresses what they should strive to produce.

The whole discussion lacks analysis of when the "good enough" paradigm applies; when is the correct question to ask "Is it good enough?"; when, "Is it as good as I can make it?" Two factors decide when "good enough" is the correct standard: 1) the perfectibility of the project and 2) the estimability of the "good enough" level. Which standard is rational reduces to whether we can attain relative perfection and whether we can know when a product is good enough. The good-enough standard is unsuitable for legal writing because no one knows what's good enough. Estimates under such uncertainty will run low because of the overcompensation bias, as estimating what's good enough is analogous to compensating for a perfectionistic bias; when we consciously try to temper our performance to compensate for a bias, we overshoot. The high degree of uncertainty regarding adequate quality argues for a relative-perfection standard governing legal-writing projects such as briefs—provided relative perfection is attainable. Proponents of "good-enough" consumerism pronounce, "The perfect is the enemy of the good," but when perfection and reasonable quality war, perfection's unattainability is the casus belli. While no one attains absolute perfection in producing complex work, lawyers unthinkingly apply the conclusion to relative perfection: the best efforts standard.

The myth of relative perfection's unattainability is the work-ethic's neurotic hypertrophy: professionals perennially atone for short-changing customers under the supposedly never-achievable best-efforts standard in the guilty pseudo-knowledge that more, hence better, is always possible; the curses of excessive citation, verbosity, and issue proliferation reinforce the myth of relative imperfectibility. If more always means better, relative imperfectibility would be justified, but on most projects, the point comes when writing more lowers quality. This point of relative perfection isn't necessarily good, but in legal projects, it's the most writers can offer and the least they should.

Monday, May 3, 2010

Actual Pomposity

Click on image to expand.

Since legalese helps lawyers avoid pompous eruptions, many lawyers will part with legalese, if ever, only if they first overcome their actual pomposity. Recognizing actual pomposity is the first step. Lawyers express actual pomposity—real self-important conceit, distinguished from its legalese camouflage—by style, content, and the interaction of style and content.

Style expresses pomposity when it inflates the tone to signal that the author thinks himself worthy of equally inflated public regard or when it expands the space that signals of high self-regard occupy. The most subtle stylistic type of pomposity is affectation, which offhandedly devotes unnecessary space to the writer, as when, instead of just stating his position directly, the writer dwells on himself by writing, "I am inclined to believe…" Stylistic pomposity is sometimes confused with superficially similar writing defects that aren't self-aggrandizing, such as turgidity and pedantry.

Content can also express pomposity, but in legal writing, the content is usually self-aggrandizing by implication. Intrusion of the lawyer's unsupported opinions and irrelevant sentiments suggest he is an important person, whose prejudices the court should notice. Often sentimental eruptions are mild and momentary, as when the lawyer describes an adverse occurrence as "unfortunate."

The most powerful, glaring, and easily recognized expressions of pomposity involve interactions between style and content. By this, I mean more than style selectively applied to particular content, such as verbose self-description. The imperious lawyer, for example, not only tells the court what it must do but tells in a manner conveying compulsion; directing emotional appeals to a judge is pompous. The interaction of style and content communicates an attitude more strongly than style or content alone.

The following paragraph contains not only abundant legalese but also three pompous expressions combining style and content. Try finding the three.

Needless to say, we disagree with much that is set forth in the Court of Appeal's Opinion herein. Nevertheless, this Petition for Rehearing is restricted to but a single aspect of the said Opinion. This single aspect is the one which pertains to that ratification of an act of his agent which is submitted to flow from the facts as represented by Mr. Jones to the Superior Court (Opinion: page 4, line 2 to page 5, line 2, page 11, line 7 to page 12, line 19). Specifically, we respectfully submit that the Court of Appeal's views relative to the assumed non-existence of such ratification, are predicated upon a factual assumption which is disclosed by the record to be incorrect. This being so, we submit that the actual facts, revealed by the record, are such as clearly to entitle us to prevail in respect of the ratification theory. (R.W. Benson and J.B. Kessler (1986) Legalese v. Plain English, Loyola Law Review, 20:301.)

The authors recognize as distinctly pompous: "needless to say," "to but a single aspect," and "clearly to entitle us to prevail." (Id., at p. 310.) "Needless to say" is too snide for general usage, but "clearly to entitle us to prevail" is the norm, a flash point where the legalese defenses against pompous eruptions generally fail. Proclaiming the clear superiority of one's arguments arrogantly tells the court to accept your say-so as authoritative. Finally, "to but a single aspect" is subtler, showing how legalese disguises pomposity but sometimes only partly succeeds. The awkward and redundant "but" is legalese; here, it also expresses actual pomposity by flaunting the lawyer's grace in filing a narrowly focused brief.