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.
I wanted to respond to your characterization of my comments.
ReplyDeleteFirst, when I said that good enough doesn't mean compromising standards, I'm referring to those standards that matter. For example, a Flip Camera doesn't have all of the features that most video users want - no zoom, no microscope, no perfect resolution. For people who buy the Flip, though, the standard that they want is convenience - and they aren't compromising on that. The Flip is not just "good enough" on convenience - it's excellent,ahead of the field. That was the point of the article.
As for me, my work is outstanding. I have never, ever advocated lower standards and in fact, I am frustrated by the low quality of work produced in the energy regulatory field. At the same time, I also see the waste; work done needlessly because a client can pay.
For example, I often handle appellate matters on a budget for clients. I will often tell the client that it's not worthwhile to pursue a certain argument right at the outset and will do a great job on the issues that I do brief. A law firm, in the interest of "comprehensiveness" might research all of the issues to death and bring in multiple levels of review to render an opinion on whether to pursue them or not. My brief may only be "good enough" in that it addresses 2 great issues as opposed to 2 great issues and 2 moderate ones. But that's the reality of a budget.
I note that you've opted for a "good enough" product for your blog.
Carolyn,
ReplyDelete1. To say "good enough" consumerism means optimizing on the "standards that matter" trivializes the concept. Consumers have always traded satisfaction on relevant standards for excellence on irrelevant standards. This is nothing new. What is new is that traditionally peripheral standards become central. We differ in that I see some threat to excellence in legal work from the "good enough" trend.
2. Your example, recommending to a client that the brief deal only with the major issues, illustrates my point that relative perfectibility is attainable: briefing every conceivable issue produces an inferior brief. (See http://tinyurl.com/25r5fao)
3. If you recommend omitting arguments for a client's budgetary reasons, where the chance of prevailing is higher when you include them——when the omitted issues strengthen the brief rather than dilute it——you are, in my opinion, applying the good-enough standard to the wrong subject matter. You don't know that the limited briefing will suffice, and you have no means of verifying that the limited brief will be "good enough." Here, "good enough" consumerism easily becomes self-serving for the professional, who might otherwise have to offer to brief all the issues at a lower rate.
4. I write my blog entries to a best-efforts (relative perfection) standard. All failings are mine: none justified by the standards I apply.