One of your colleagues at your law firm prepared an exhibit for use at trial. The exhibit is a timeline where you’ll run through a series of items to build the timeline before the jury’s eyes. You ask your expert witness to comment on the timeline.
“I don’t understand the fourth entry. What are we trying to say there?”
“You’re right. I don’t understand that entry either. Let me talk to my colleague and get back to you.”
The sixth entry on the timeline poses problems, too. The expert can’t understand it. But you can: “Oh! I know what that one means.” And you go on to give a 30-second explanation of what the entry means.
A partner looks at a draft brief. The partner circles a sentence and writes: “I’m not sure what this means. What are we driving at?”
When you next see the partner, you explain what the sentence means.
What’s the problem in all of these scenarios?
Your reaction is wrong.
If you, or someone else, doesn’t understand what’s trying to be communicated in a written document, then it’s not your fault. It’s the writer’s fault. The words are no good. The words shouldn’t be explained; they should be rewritten to be comprehensible.
In my first scenario, where neither you nor the expert understands the entry in a timeline, what are the odds that a judge or jury will understand what’s being said — zero in a hundred, or zero in a thousand?
If, as in my second scenario, only your expert doesn’t understand the words, what’s the chance that you’re communicating with a person of average intelligence? Your expert is presumably of above-average intelligence. Your expert knows what the case is about. And your expert doesn’t understand what’s being said. Your expert wins: Rewrite the entry.
Perhaps you can explain the entry. Or perhaps, as in my third scenario, you can explain what a sentence in a brief means — because you wrote the sentence, and it would be remarkable if you couldn’t explain words that you had written.
So what?
The idea is not for a person with intimate knowledge of your case to be able to understand your words. The idea is for a person of average intelligence with little or no knowledge of your case — that is, an overworked judge or a bored jury — to instantaneously grasp the meaning of the words. If the words require explanation, the words have flunked that test. Period.
So, as I asked in the title to this column: Is the problem with the writer or the reader? Unless you think that your reader is far below average in intelligence, and so your reader’s reaction is unreasonable, the reader is always right, and the writer is always wrong.
If people don’t understand things, do not explain those things. Rather, rewrite them, so that the words explain themselves.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.