DON'T SAY "NEXUS;" SAY "CONNECTION" : WHY I DON'T LIKE PRETENTIOUS LANGUAGE

AN ESSAY

During my first year in law school, I had to take a "legal writing course." It was pure misery. The "professor" was really no professor at all, but rather a disgruntled low-level staffer from the Attorney General's office who worked part-time scolding terrified first-semester students for putting one space before a period rather than two. She never praised anyone. And she consciously tried to drain all individuality from everyone's writing. She said: "This is legal writing. It's time to un-learn everything you've ever learned about writing. Right now."

In her defense, legal writing is certainly different from expository writing. It follows distinct conventions and customs that differ from the classic liberal arts essay. It proceeds along identifiable logical pathways and channels arguments to lead ineffably to a conclusion. It is not subtle. Legal writing does not hide anything from the reader. It tells him exactly what he is reading and repeats it about fifty times before it is over. In our legal writing class, we learned how to manufacture these technical baubles. And we got lots of bad grades along the way to remind us that we missed some essential detail or other.

I became a pretty decent legal writer. After all, it isn't difficult. It's just a skill, like baking. There is no artistry to it. You just take a position, organize some arguments to support it and start declaring why you're right. You avoid the passive voice, follow a set sentence structure and repeat your argument over and over again. You make all your sentences declarative and begin each closing line in a paragraph with "thus." Clarity is important. Subtlety is not. And why should it be? After all, if you're writing to a court to win a case, you don't want to leave your fate to interpretation, do you? Hell no. You want to scream why you're right; and you'll be damned if you hesitate in your demand for victory.

But there is irony in all this. Legal writing--like the law in general--leads lawyers to believe that they possess magical powers. After all, lawyers feel exulted because they know that they can influence the machinery of the State to deprive others of property, liberty and even their lives. They influence that machinery through advocacy, including writing. For that reason, lawyers believe that their "legal writing" opens the doorway to power over others.

Yet there is nothing magical about the law or legal writing. In fact, I came to understand that legal writing actually wields very little influence, despite the mythology to the contrary. When I practiced law, my superiors praised my writing. I thought it led courts to make better decisions in particular cases. But time after time, I saw that judges probably had not even read what I had written. Rather, they knew beforehand how they would rule in a case and carried that prejudice with them through the proceeding. No matter how grand my rhetoric or airtight my logic, my writing would never dislodge an entrenched conviction. Just because I nailed all the technical criteria required for "good legal writing" did not mean I would magically win the case.

All this sobered me about the "power of the law." I learned that there was a vast propaganda machine at work perpetuating the idea that "judges were impartial" and that "good arguments always persuade." The cruel fact is that judges and lawyers are just as shortsighted and prejudiced as the next man. They make decisions based upon their cultural intuition, social values and emotional reactions. They can skillfully cite the law to provide a seemingly "neutral" justifications for their decisions. But in the end, "good legal writing"--and even "good arguments"--will almost never change minds.

Nor should it. Legal writing is agonizingly formulaic. I even wonder how judges can even keep their eyes open when they read it. And who really needs to know what one side in a case says? You can pretty much figure out what each side wants in the case simply by looking at the facts. If a person gets injured, he's going to say the other guy is at fault and should pay him money. The other guy will say he's not at fault and shouldn't have to pay. Or maybe he'll say the injured guy caused his own injury, so he's excused. Our legal system is adversarial. That means that you can figure out exactly what each side wants beforehand: Team A wants to make money; Team B wants to save money. Each accuses the other of bad faith and shouts to the court why he should win.

It's not complicated. It's just a game: One team wants to beat the other. You don't need masterful writing to understand how most cases go. Our adversary system explains it all. And chances are a judge will form an intuitive opinion about the dispute long before he reads what either team has to say about it. So nothing either team says will change the result.

Yet lawyers love their writing, even if it does not ultimately influence anyone. Worse, they scold lower-level employees who do not use the right words in court papers. This may seem meaningless--after all, why insist on particular words if the writing does not affect the outcome in the end?--but it happens. It is as if lawyers understand that their writing will change no one's mind, yet they adhere to rigorous standards merely to show that they can. This is sheer pretentiousness, and I don't like it. Moreover, it is pretentiousness without reason; for even when lawyers use all the right formats, phrases and page headings, their writing will not influence the judge. He has already taken an intuitive notion about the case.

Take this example: In legal writing class, we learned that you must always recite a legal rule exactly as it appears in a case. Over the centuries, pretentious judges have written pretentiously (and sometimes very poorly) about the law. When they lay down a legal rule in a particular case, they enshrine bad writing for generations to come. But in legal writing class, you must cite the rule exactly as it appeared. I recall an example about some lawyer being disciplined for neglecting his client. Once upon a time, a court said there had to be a "nexus" between the lawyer's conduct and resulting harm in order to determine whether an attorney should be disciplined for client neglect.

What the hell is a "nexus?" In law school, I remember thinking: "What a pretentious, unnecessary word. You can just use the word 'relationship,' or even 'connection' to express the same idea without sounding like a complete SAT-word-dropping douchebag.'" So in my brief, I cited the rule without using "nexus." I changed it to "connection." I thought it sounded more accessible. It sounded less arcane. I did not want to sound like a spell-casting sorcerer when I wrote. I wanted my reader to understand immediately what the law said.

But I got a bad grade on that paper because I did not literally use the word "nexus" in reciting the legal rule. It did not matter that my formulation expressed the rule better than the judge's legalese. No, details are important in legal writing, even really bad details that do nothing to improve communication or style.

Still, at the time I had not yet recognized that the law cared nothing for style. I had always prided myself on making my writing as clear and as accessible as possible. It was difficult for me to comprehend that clarity and style did not matter in this new discipline. I resented the formality and structure in legal writing. Ultimately, I learned to do it with the best of them. But it was just imitation. I never believed that legal writing possessed any intrinsic merit over my traditional, expository style.

Recently, I have begun to see legal writing in a larger context. Now, its rigidity and pretentiousness make sense: They reflect the law's effort to construct a fanciful aura of authority and inaccessibility.

Courts and judges--as well as the governments that institute them--benefit from a population that fears the law. People fear things they do not understand. They cower before institutions that speak in a hard-to-understand way. It makes them obedient and respectful. That is why courts want words like "nexus" instead of "connection." If they used words like "connection," people might understand what they were saying. If that happened, more people might see through the law's charades and disrespect it. They might not even need lawyers to translate all the legal rubbish.

In this light, pretentiousness in legal writing makes some sense. It is a smoke-and-mirror routine. It is Wizard of Oz stuff. It looks impressive. But in the end it's all nonsense. Men behind velvet curtains are still men, even if they use befuddling synonyms for common words.

And the ultimate irony is that even the best legal writing will not impress the men behind the velvet curtain. They already know what they plan to do each day. Lawyers can talk and write until they are blue in the face. It won't change anything.

SEEING, HEARING AND REMEMBERING : PATHWAYS TO UNDERSTANDING

AN ESSAY

In ancient China, Confucius allegedly said: "Tell me and I will forget; show me and I may remember; involve me and I will understand." I had never heard this proverb before. It captivated me because it encapsulates many of my views about sense, speech, memory, experience and empathy. All these things relate to each other. And they all aim for one thing: Understanding.

What does it take to understand another person? Is it enough to hear a person describe problems with words? How about observing something firsthand? What is the most effective way to find understanding and empathy?

I have often written that we humans are subjective creatures. We know only what we sense. Unfortunately, we must also depend on language because our senses have a limited range. After all, we only feel certain about something when we perceive it directly. We would prefer to see something with our own eyes rather than hear about it in words from someone who saw it. We want to understand our surroundings and the people in our lives. And the only pathway to understanding is sense.

But it is a troubled pathway. For what can we really know, let alone understand? Knowledge is not the same as understanding. Knowledge is more banal than understanding. Knowledge means that we merely manifest a subjective belief that something is true because we perceived it. Yet understanding is more subtle. Understanding means that we not only know things, but we intuitively arrange our knowledge to tell a larger story. Knowledge is about details. Understanding is about narrative. Knowledge is just an actor. Understanding is the whole play. And we don't feel truly fulfilled until we really understand something: What good are isolated facts unless they tell us something more significant?

Confucius recognized that human sense opens the door to both knowledge and understanding. Yet he also recognized that there is a hierarchy in human sense. He says: "Tell me and I will forget," implying that hearing is a weak sense. How right he is. How often do we hear language and immediately forget what we just heard? It is difficult to glean knowledge from language, let alone understanding. It is incredibly easy to forget words. After all, words are a poor substitute for actual perception. But in many cases they are all we have to reconstruct our perceptions.

Sight is better than hearing. Confucius confirms this when he says: "Show me and I may remember." Here, he does not say he "will forget." If he perceives something visually, he says he "may remember" it. Again, Confucius is right. Sight links intimately to memory. Our eyes leave "visual impressions" on our minds long after images leave our present view. When we reminisce, we engage our "mind's eye." We attempt to re-see images that have long since disappeared from sight. We may not precisely remember what we see; indeed, with time, memory weakens. So in that way, Confucius correctly points out that we only "may" remember something after we see it.

And we see all the time. It is simply impossible to recall every single thing we visually perceive every day. Our memory works best only after we see something worth remembering, namely, something exciting, unusual, captivating or appealing. To a large extent, our own subjective desires color what we remember. If we are infatuated with someone, we remember how they look with great detail. We hang on their words and even remember what they say. Yet those subjective desires obscure other details. We don't remember many things we see because we are distracted with our love interest. We are not paying attention; our emotions cloud our perceptions. Thus, while sight may be a better way to acquire knowledge than hearing, we will never remember everything we see. There is just too much going on. We cannot know everything because our senses are imperfect.

But Confucius does not end his proverb with knowledge. He goes beyond. He ends with "understanding:" "Involve me and I will understand." Understanding is the ultimate goal; the proverb builds up to it. He does not equivocate here, either. He says: "I will understand."

What is going on here? And why is understanding better than knowledge?

Anyone can know facts. You must merely have functioning sensory organs to know whether something is hot, cold, smelly, coarse, green or blue. Some facts require complex sensory deductions and inferences, but deductions and inferences are just mechanical mental conclusions. Anyone with rudimentary reasoning power can infer one fact from another.

But understanding is more transcendent than that. Understanding combines knowledge with experience and intuition. It is one thing to know whether another person is sick, obligated, depressed or happy. It is quite another to understand a person who experiences those circumstances. Understanding requires a person not only to listen, observe and infer facts about another. It also requires him to put that knowledge in the light of his own experience and honestly try to feel what the other person feels. That is no easy endeavor. It takes time to assemble experience. That is why we tell young people: "When you're older, you'll understand." After all, how can you understand a complicated emotional problem if you've never experienced the emotions that make it a problem in the first place? If you do not have experience, you cannot truly understand. You can know, but you cannot understand.

Confucius was right to extol understanding as the "higher result" of knowledge. Why do we learn? Simple: So that we can understand. And why do we want to understand? Because understanding enlightens us. It makes the world more comprehensible. Understanding equips us to help others. Understanding counteracts prejudice and shortsightedness. Violence springs from misunderstanding and ignorance. It is hard to go to war with someone if you actually understand them.

Yet the fact that human beings constantly make war on each other bespeaks a sad truth: Understanding is not common. It is hard enough to acquire reliable knowledge through hearing and sight, let alone to understand larger implications about life. Most people never even acquire the knowledge they need to understand others. Understanding is impossible without knowledge. And only a patient person takes the time to obtain the knowledge needed to find understanding.

Who has time for that in our society? Who has time to listen? And most importantly, who has time to get involved with others in order to understand them? Confucius' proverb said that involvement results in understanding. That means living with others and experiencing their lives first hand. That means living with their problems, too. Involvement is not just a pervasive sensory journey; it also is an emotional one. When you involve yourself in another person's life, you eat, drink, sleep and breathe their problems. You sense what they sense. You obtain knowledge at an astronomical rate. And because you combine your experience with theirs, you necessarily will understand them. Once you understand them, you can empathize and comfort. Or you can turn away. In either event, you are enlightened. You are no longer ignorant.

But that takes a very long time. It takes a lot of energy. To achieve understanding, then, a person must not only have experience and knowledge. He must also be patient enough to involve himself in others' lives in a compassionate way.

Sadly, neither patience nor understanding are highly prized virtues in modern American society. Yet people yearn to be understood. In most cases, they must pay others to understand them. After all, time is money in the United States. No one has time to sit down and listen to another person's deepest thoughts, let alone get involved in their lives in a meaningful way. This is one reason why people are desperately unhappy in this country. They want to be understood, but no one has the time, patience or intellectual capacity to "learn" their woes. This leaves many people feeling isolated and forgotten. Even married couples never take the time to really understand each other.

I venture that understanding offers its own rewards. It is satisfying to understand others and to understand yourself. True, it takes time, learning and effort. But it feels so good to know another person understands you. By the same token, it feels good to give back by understanding others. It is an enlightened and compassionate way to live. Despite all the impulsions to the contrary, sometimes it is good to be patient in our society.