“In matters of grave importance, style, not sincerity, is the vital thing.”
“Originality in the law is viewed with scepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.”
Duncan Webb, ‘Plagiarism: A Threat to Lawyers’ Integrity?’ (2009), International Bar Association
Reasons for decisions are the windows into the decision making process. Reasons should ensure transparency in decision making, allow for accountability for decisions (through judicial review or just generally) and be accessible to the average reader. In this way, reasons for decision are an important part of access to justice.
There is no shortage of advice offered to adjudicators on decision writing at conferences and seminars. A recent article by Justice David M. Brown in the Energy Regulation Quarterly is a good summary of the advice adjudicators receive in training.
In this column I want to focus on writing style and some of the research on comprehension highlighted in Steven Pinker’s recent book, Sense of Style: The Thinking Person’s Guide to Writing in the 21st century.
We now know that the bar has been set very low in terms of writing style for judges, and by extension, for adjudicators. The Supreme Court of Canada decided in 2013 that a judge could largely copy from the parties’ submissions in his reasons: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII). In that case, only 47 of the 368 paragraphs (13%) were in the judge’s own words. Writing for a unanimous court, The Chief Justice, noted (at paragraph 31): “Nor is lack of originality alone a flaw in judgment writing; on the contrary, it is part and parcel of the judicial process.”
The Chief Justice also quoted from an article by Professor Simon Stern:
Judges are not selected, and are only rarely valued, because of their gift for original expression. …judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law. . . . [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before.
The SCC has indeed set a low standard for decision writing, noting that the scope for judicial creativity is “narrow, but not non-existent”: “it finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law.”
After reviewing the low standard set by our highest court, you might wonder why adjudicators should bother writing with style. Style in writing does matter, Pinker points out. It ensures that writers get their message across, “sparing readers from squandering their precious moments on earth deciphering opaque prose”. Style also earns trust. Consistency and accuracy in writing reassures readers that the writer takes equal care in conduct they cannot see as easily. And, a beneficial side effect of style in writing is the beauty it adds to the world. We all have likely experienced the satisfaction of reading a well-crafted decision.
Some might think that opaque prose is a deliberate choice, as summarized by Calvin (of Calvin and Hobbes): “I realized that the purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity.” Pinker refers to this as the “bamboozlement” theory and he is skeptical that it explains poor writing. He prefers the Hanlon’s Razor explanation: never attribute to malice that which is adequately explained by stupidity. The stupidity he is referring to is the failure of the writer to imagine what it is like for someone else not to know something that you know (“the Curse of Knowledge”).
The inability to see a topic from the perspective of someone who knows less than you is pervasive and has been studied extensively by psychologists. The common affliction of hindsight bias is a good example. This is the tendency to think, after the fact, that an outcome must have been obvious before the fact. Pinker reviews a number of studies that have shown how poor adults are in estimating other people’s knowledge and skills. One study showed that experienced cell phone users guessed that it would take a novice 13 minutes to learn to use the phone, when it took 32. These studies lead to an important conclusion for decision makers: the better you know something, the less you remember how hard it was to learn. As Pinker notes, this can lead the experienced writer to not bother to explain jargon, spell out the logic or supply necessary detail.
The common advice given to adjudicators is to “write for the losing party”. This is similar advice given to writers generally: “always remember the reader over your shoulder”. Pinker notes that this advice is not as effective as you might think. This is because just trying harder to put yourself in someone else’s position does not make you much more accurate in figuring out what that person knows. However, it is a start, as occasionally people do learn to discount their knowledge when they are shown how it biases their judgment.
Pinker highlights the insidious nature of the curse of knowledge: it conceals not only the contents of our thoughts from us “but their very form”. When you know something well, you don’t realize how abstractly you think about it. You also forget that other people, who have lived different lives, have not gone through the same history of “abstractification”. This is due, Pinker states, because of two actions of the mind: chunking and functional fixity.
Human working memory can only hold a few items at a time – psychologists believe our brain’s capacity is limited to three or four. The workaround is packaging ideas into bigger and bigger units, which have been termed “chunks”. Each chunk, no matter how much information is crammed inside it, occupies a single slot in working memory. Pinker gives the following example: of the following sequence of letters, we may only be able to retain a handful: M D P H D R S V P C E O I H O P. If, however, we group them in well-known abbreviations of MD, PhD, RSVP, CEO, and IHOP, we can remember all 16 letters (assuming that we know that IHOP stands for International House of Pancakes).
As Pinker notes, chunking is not just a parlour trick; “it’s the lifeblood of higher intelligence”. As we learn a new field, such as law, we master a large number of abstractions (or chunks) which can ease discussions with others in the profession. As Pinker writes, “an adult mind that is brimming with chunks is a powerful engine of reason”. But this “chunking” comes with a cost: an inability to effectively communicate with other minds that have not mastered the same chunks.
The amount of abstraction that a writer can get away with will depend on the expertise of the readers. However, figuring out what “chunks” have been mastered by your reader requires a gift of clairvoyance that we don’t have. Pinker also notes that we may be reluctant to use plain speech because it may indicate that we are not as sophisticated as we would like to appear. We also may worry that we are insulting the intelligence of the reader by spelling things out. Pinker notes that we’re more likely to overestimate the average reader’s familiarity with our world than to underestimate it. His tip is a good one for decision writers: assume that the reader is as intelligent and sophisticated as you are, but that she happens not to know something you know.
Expertise also makes ideas difficult to share because of functional fixity: as we become familiar with something, we think about it more in terms of the use we put it to and less in terms of what it looks like and what it is made of. This is illustrated by the famous “candle problem”. The task was to fix a candle on a wall without dripping wax, with the following items: a box of candles, a box of thumbtacks and a book of matches. The challenge arises from the functional fixedness of the boxes containing the candles and the thumbtacks. Very few people think of tacking one of the containers to the wall as a makeshift shelf to hold the candle. And the fact that you now think this was an obvious solution is also good example of hindsight bias.
Pinker says that because of these factors it is harder than you think to communicate to the average reader. This is largely because you are the last one to realize what will be unfamiliar to your readers. He suggests that the best way to escape the curse of knowledge is to get a “feedback signal” from the world of readers. In other words, show a draft to people who are similar to the intended audience and discover whether they can follow it.
That’s the approach I take in writing these columns and in writing decisions where I don’t have tribunal support. As Pinker notes, the advice sounds banal but is in fact profound:
Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.
That’s why professional writers have editors. I have written elsewhere on the benefits of a good copy editor. I have also written in a previous column about literacy audits and access to justice. In my experience, very few tribunals employ professional editors. At most, decisions are reviewed by lawyers who, of course, are subject matter experts and unlikely to assist in escaping the curse of knowledge. This raises interesting questions of deliberative secrecy – how can an adjudicator share a draft with someone similar to his or her audience who, by definition, is outside of the tribunal?
Pinker does note that reviewers of your writing do not need to be a representative sample of your intended audience – often it is enough that they are simply not you. You should also be cautious about implementing all suggested changes, as each reviewer has a curse of knowledge of their own, as well as “hobbyhorses, blind spots, and axes to grind”.
Pinker has many more tips for writing, based on sound psychological principles. I will turn to some of them in a future column.