The Proper Level of Ignorance
What's wrong with this picture?
You have an important brief or memo to write. You master the facts, research the law, marshall your thoughts, write your argument, revise your writing, and end up with:
"The expert testimony and the re-direct examination of Jones prevent the application of the Smith doctrine, as shown by the FERNCO court's interpretation of Act § 8(a)(3). Boone's concurrence only emphasizes this point, and the dissent impliedly concedes it. If anything, famous footnote 18 confirms this point by rejecting...."
Your argument may be correct, even path-breaking and brilliant, but have you communicated it? Probably not, because you haven't written at the proper level of ignorance.
Why is it important to write at the proper level of ignorance? Because when you master the facts, research the law, and marshall your thoughts, you are turning yourself into an expert. Expertise has its virtues, but clear communication with those who are not experts is not generally among them.
Where does this difficulty in communicating come from? There are many sources, but one important one is the human tendency to define the world from one's particular and peculiar point-of-view. That is, most of us treat ourselves as the baseline: tall people are people who are taller than us, short people are people who are shorter than us, old people are people who are older than us, young people are people who are younger than us, etc.
Whatever the consequences in life of considering yourself to be the baseline, the consequences can be devastating in trying to explain a subject in which you have made yourself an expert. In my law-school course on personal income taxation, for example, the professor was an expert -- wrote the book, in fact. The professor would spend class criticizing "those silly men on the Supreme Court" (they were all men in those days), while I was still trying to figure out why someone would want to lose money on a transaction. I know I was being taught by an expert, but it would have helped me if he had been at my proper level of ignorance.
Similarly, before you mastered the facts, researched the law, and marshalled your thoughts, you started from a certain level of ignorance. Your becoming expert in the facts and the law took time -- a week, a month, maybe even years. Now, your reader is starting from his or her own particular and peculiar level of ignorance. To communicate with your reader, you need to write as close to that level of ignorance as you can.
How can you determine the proper level of ignorance? Since you can't read your reader's mind, there is no foolproof way. Nevertheless, there are some factors you can weigh to determine the proper level of ignorance:
How much exposure has your reader had to the case and how recent and intense was that exposure? A judge who has had no exposure to the case is starting at square one -- Is Smith the plaintiff or the defendant? Is this a personal-injury case or a will contest? Even if the judge has had some exposure to the case, that expertise will vary with how recent and intense that exposure was. A judge who ruled on a discovery motion two years ago and a judge who spent all last month presiding at the trial and is now ruling on post-trial motions have both been "exposed" to the case, but their levels of ignorance are vastly different.
Is your reader part of an expert body? Judges in administrative agencies, in specialized courts, or in specialized divisions of courts (e.g., probate, juvenile, post-judgment) develop expertise in their fields and on their governing statutes. Your reader's level of expertise on the Illinois Human Rights Act, for example, will differ if you are taking a Request for Review to the Human Rights Commission or a constitutional challenge to the U.S. District Court. Judges on courts of general jurisdiction tend to become expert on "typical" cases (e.g., auto-accident cases in the Law Division), on the Court's local rules, and on "typical" procedural matters.
How long has your reader been in his or her current position? Even if your judge is in a position that would seem to give him or her some expertise, being new on the job may mean that that expertise has not yet developed. A new bankruptcy judge, for example, may never have handled a bankruptcy and may be frantically reading Collier's in between sessions. A new judge may welcome a full explanation of basic points while an experienced judge is more likely to welcome such an explanation being truncated or even omitted.
Has your reader had any particular and peculiar experience that would raise his or her level of ignorance? It's always possible that your judge handled such cases before in practice or on the bench or has written about them. Lexis and Westlaw searches and manual review of sources such as The Almanac of the Federal Judiciary and The American Bench can give you an idea whether your judge has any special expertise. Your experience and that of your friends and colleagues before the judge can do the same.
Once you determine the proper level of ignorance, write at that level without talking down to your reader. Helpful techniques for doing that include:
Use the power of pigeonholing to introduce your reader to the case. The mind of a reader who comes to a case cold craves some way to organize all the material that is being thrown its way. This craving should be met by pigeonholing -- that is, giving the reader's mind a category in which to place the materials. The pigeonhole should help call to mind relevant law and typical facts. Depending on the proper level of ignorance, the pigeonhole can be technical (e.g., "This is a retaliation case under § 6-101 of the Act") or almost layman's sounding (e.g., "This is an auto-accident case"). To properly pigeonhole, every writing should have an introduction that:
Pigeonholes the type of case. (E.g., "This is an auto-accident case growing out of an intersection collision".)
Pigeonholes the problem before the court. (E.g., "This is Plaintiff's Motion, and this Motion concerns a discovery dispute over the propriety of interrogatories that request defendant to reveal similar accidents".)
Pigeonholes the result sought. (E.g., "By this Motion, Plaintiff seeks an Order to Compel Answers.")
Of course, pigeonholing not only helps the reader to organize the materials that he or she is about to receive, but also can be a very persuasive tool to the extent that the materials will be organized in your categories.
Identify your characters. If your reader's level of ignorance is at the "Is Smith the plaintiff or the defendant?" stage, be sure to help your reader out. Let the reader know who is who. Functional descriptions (e.g., "the Supervisor", "the passenger") can help in this regard. Of course, as we discussed in the column on Writing the Statement of Facts, if the functional description reinforces your conception of the case, so much the better.
Explain the importance of your points. Why are you discussing a case or some facts? Depending on your reader's level of ignorance, you may want to explicitly explain that it's the leading case, or the Supreme Court's latest word on the subject, or establishes an element of the cause-of-action, etc.
Use clear transitions. Similarly, why has your discussion gone from point A to point B? Depending on your reader's level of ignorance, you may want to explicitly explain that your opponent has to prove not only A, but also B, that you win even under the minority rule, etc.
Avoid shorthand and jargon. What is the FERNCO court's interpretation of Act § 8(a)(3)? I never understood it myself.
Remember: the proper level of ignorance is the closest thing to bliss.
© 2008 by David L. Lee