Is The Problem With The Writer Or The Reader?

One of your colleagues at your legislation agency ready an exhibit to be used at trial.  The exhibit is a timeline what place you’ll run by means of a sequence of things to construct the timeline earlier than the jury’s eyes. You ask your knowledgeable witness to touch upon 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 issues, too. The knowledgeable can’t perceive it. But you may: “Oh! I know what that one means.” And you go on to provide a 30-second rationalization of what the entry means.

A associate appears to be like at a draft temporary. The associate circles a sentence and writes:  “I’m not sure what this means. What are we driving at?”

When you subsequent see the associate, you discuss what the sentence means.

What’s the issue in all of those situations?

Your response is improper.

If you, or another person, doesn’t perceive what’s making an attempt to be communicated in a written doc, then it’s not your fault. It’s the author’s fault. The phrases are not any good. The phrases shouldn’t be defined; they need to be rewritten to be understandable.

In my first state of affairs, what place neither you nor the knowledgeable understands the entry in a timeline, what are the percentages {that a} choose or jury will perceive what’s being mentioned — zero in 100, or zero in a thousand?

If, as in my second state of affairs, solely your knowledgeable doesn’t perceive the phrases, what’s the possibility that you just’re speaking with an individual of common intelligence? Your knowledgeable is presumably of above-average intelligence. Your knowledgeable is aware of what the case is about. And your knowledgeable doesn’t perceive what’s being mentioned. Your knowledgeable wins: Rewrite the entry.

Perhaps you may discuss the entry. Or maybe, as in my third state of affairs, you may discuss what a sentence in a quick means — since you wrote the sentence, and it could be outstanding if you happen to couldn’t discuss phrases that you just had written.

So what?

The thought just isn’t for an individual with intimate data of your case to have the ability to perceive your phrases. The thought is for an individual of common intelligence with little or no data of your case — that’s, an overworked choose or a bored jury — to instantaneously grasp the which means of the phrases. If the phrases require rationalization, the phrases have flunked that check. Period.

So, as I requested within the title to this column: Is the issue with the author or the reader? Unless you assume that your reader is much under common in intelligence, and so your reader’s response is unreasonable, the reader is all the time proper, and the author is all the time improper.

If folks don’t perceive issues, don’t discuss these issues. Rather, rewrite them, in order that the phrases discuss themselves.

Mark Herrmann spent 17 years as a associate at a number one global legislation agency and is now deputy basic counsel at a big global firm. He is the creator of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by electronic mail at inhouse@abovethelaw.com.