“Simple” versus “Simplistic”
Why can’t lawyers make things simpler? After all, if they were to apply a “relevancy” test (think: The Rules of Evidence) to each of the matters and tasks they perform, wouldn’t the product be delivered faster, cheaper and unambiguously with no compromise of quality? Who is served by abandoning plain language and shrouding the intent of contracts, for example, in pages of arcane, redundant, and unimportant “legal speak”? Certainly not clients.
IBM’s legal department struck a blow for simplicity recently when they distilled dozens of pages of abstruse contracts for cloud services into a simple, two-page document. Why did they do this? Because the “standard” 30-page agreement extended the sales cycle, frustrated customers, and, in some instances, cost the company business. This is an example of an attorney performing valuable service to the client by taking proactive measures to simplify things. It begs the question: “Why don’t lawyers do this more often?” Two areas ripe for such proactive measures are litigation avoidance and streamlining all standard agreements. And what’s wrong with making things–as IBM’s lawyers did–simpler?
So why is simplicity the exception, rather than the rule, for lawyers? Could it be a throwback to the days when lawyers were like delis and charged by the pound (both as to weight and currency)? Is it the oxymoronic combination of simplicity (substitute: “efficiency”) the billable hour? Or might it be that many lawyers mistakenly believe that the injection of unwarranted complexity somehow enhances the importance of what they do? Why use plain language and distill the complex into the readily understandable when to do so might debunk the myth that legal work is beyond the grasp of non-lawyers? Undue complexity might just be the legal sauce applied to a dish that is often not so special.
The fact is that simplicity–as IBM’s lawyers demonstrated–is an asset, not a liability, for lawyers. The ability to distill and to communicate complex fact patterns, regulatory schemes, and case law in oral and written forms is an essential legal skill. Good lawyers are storytellers and can communicate nuanced messages with clarity, precision and simplicity. And this extends beyond trial lawyers to other practice areas. Lawyers should be able to communicate the “elevator pitch” of even the most complex matters in simple terms. Not to be able to do so suggests a lack of command–if not understanding–of that matter.
It is more than mere semantics to distinguish a “simplistic approach” from a “simplified solution.” The former implies that material pieces of the issue have been unaddressed. The latter suggests that irrelevant pieces of that issue have been discarded and only material elements have been analyzed in yielding a solution. As Einstein said, ““Everything should be made as simple as possible but not simpler.” Why is this crucial distinction not routinely practiced by most lawyers?
“The Honda Theory of Jurisprudence”
Remember in the late ‘70’s when Honda’s slogan was “We make it simple”? The genius of the campaign–much like the value proposition for the car– was that Honda had drilled down on what their target market wanted. It was a reliable, low-priced car with an engine that could run on any grade of gas and one key that would work all the locks as well as start the ignition. Simple. Efficient. Understandable. I never bought a Honda but, as a young trial lawyer, adapted their philosophy to my practice and described it as “The Honda Theory of Jurisprudence.” What I learned is that it is remarkably difficult to distill complex cases into simple stories. How did I know when I was ready for trial? Two ways. The first involved going up to a stranger and saying that I would pay them $20 if they would take 5 minutes to listen to a story and relate its message back to me. I would present the case for the first 3 minutes; the next 2 minutes were spent listening to the stranger provide a take on what I had told them. If they understood the story, I was ready for trial. Almost. That brings up the second part of the final preparation. I would open each trial with the same line, substituting one word at its end. I would say: “This is a case about (one word; fill in the blank). I recited this sentence to begin opening and closing statements. In those instances when I was permitted to poll the jury, they almost unanimously said they had focused on that one word (greed, opportunity, competition, etc.) to frame the case. It’s not that the cases were simple–most of them were highly complex–but I knew that if I drilled them down to the essence for the trier of fact and framed things in my self-selected simple term, I had a big advantage. To analogize to the IBM contract modification, it was easier to “get to yes” by simplifying things and sticking to what was relevant and material.
Keeping Things Simple
Is it hubris that prevents most lawyers from simplifying their work? Or is it perpetuation of the myth that what they do is bespoke? Perhaps, as noted previously, economic incentives are the antagonist of simplicity. That would change were fixed-price billing and transparent statements of work (who, what, when, and how much for handling the case?) the new standard for legal engagement. Lawyers would be well served to simplify things for themselves and for their clients. One way to achieve that is to ask the client at the inception of each engagement: “What is your objective?” Not only is this a key driver of case strategy, but also–and more fundamentally–it eliminates misconceptions and aligns expectations. Imagine hiring a contractor to build an addition to your home and have work commenced without any prior discussion of style, finishes, square footage, use, workers, and price? That remains the norm for how lawyers/firms operate. And it leads to “frolics and detours”, fee disputes, erosion of confidence, and a host of other unfortunate consequences. A simple solution for this recurrent disconnect is for lawyer/firm and client to achieve alignment of objectives and expectations prior to work commencing on a matter.
Lincoln’s Gettysburg Address–272 words–is a shining example of eloquent simplicity. Each word has relevance, meaning, and power–nothing superfluous. His ability to compress a complex story about war, politics, human aspirations, healing, and so much more–and to communicate it in plain language and few words– is a reminder of what good lawyers can do.