Failure to Cohere

That last post of mine was not my best. I was tempted to make it disappear, assuming such things are still possible in cyber-space. But that seemed unfair. More sporting to see if I could turn yesterday’s debris into today’s fertilizer.

That last post failed because the attempt to forge connections between several unrelated things was both overly ambitious and underdeveloped. Of course, an inherent challenge (and much of the fun) in a blawg like this is in trying to make meaningful connections between seemingly incongruous things—like Shakespeare, current events, law or law practice, and, on occasion, my daughter’s latest cute antic. But the connections have to resonate beyond the confines of my own head.

Arguments about perceived similarities that seem strained or insufficiently supported will fail to spark the same kind of epiphany in a reader that I experienced, say, while jogging around Lady Bird Lake. To succeed, my blogging efforts need to simulate the process of building certain kinds of legal arguments. For instance, a legal argument can be premised on the perception that two different cases involving different facts are sufficiently alike such that the later one should have the same outcome as the earlier one. But convincing a decision-maker to see things your way first requires recognizing that the decision-maker has not necessarily read the earlier case upon which you want to rely. You have to tell the reader enough about the story underlying the previous judicial opinion—but not so much that the details overwhelm or distract. You then have to walk them through the analogy that makes you believe the old case is like your new case, never forcing readers to draw appropriate inferences on their own. You also have to convince your readers that the previous court’s reasoning in applying a legal rule to a particular set of facts was sound such that adopting the reasoning and the outcome in the new case would be just. You will not convince your readers if they cannot follow that reasoning. Yet equipping someone to follow someone else’s reasoning often means making explicit what was only implicit, making a causal chain even more accessible than it was in the original.

Another problem is this: although humans are inclined to see patterns everywhere, they do not simply see the same patterns that another human being sees. To enable someone else to see a pattern that seems obvious to you, you have to take a set of impressionistic images and turn them into a linear sequence forged in words. And because human minds are so tempted to make logical leaps, you cannot leave any gaps that those you are trying to convince will be tempted to fill in their own idiosyncratic way.

In other words, people see connections among disparate things easily. But getting people to make the same connections that you have in mind requires logical argumentation, which is hard.

Shakespeare kind of makes this point in Othello. All the bad guy, Iago, has to do is insinuate that Othello’s new bride may be messing around with Othello’s dashing young lieutenant, Cassio. Then Othello starts to see things that are not really there. Iago merely uses a few props and circumstantial evidence to induce Othello to misread innocent events and to discount evidence that contradicts an hypothesis he is, for whatever reason, predisposed to believe. If Othello had stopped and reasoned through the connections he was making, he may have been able to see how foolishly paranoid and insecure he was. Instead, he eventually comes unhinged by irrational jealous.  Even as he marvels at “that whiter skin of hers than snow,/ And smooth as monumental alabaster,”  he can no longer see his beloved Desdemona except in the dark terms Iago obliquely suggested. And so Othello kills her.

So, if you want to control how someone connects the dots—seeing the same pattern in distinct events that you see—you have to be incredibly meticulous about it. With legal arguments, a decision-maker may have no emotional investment in your cause or may be temperamentally predisposed to see disputes like yours in a particular way. Either way, you cannot leave it them to do the heavy intellectual lifting if you want to have any hope of success. Because, just as Puck recognizes that “reason and love keep little company together,” we have to see that reasoning and decision-making are not essentially coefficients. Intuitive gut reactions come more naturally to folks than plodding, coherent arguments.

For more on how our intuitions often operate at odds with reason (and verifiable reality), I direct you to a terrifically disturbing book by cognitive psychologists, Christopher Chabris and Daniel Simons: The Invisible Gorilla. I think it should be required reading for all lawyers and free-associating blawggers.