Mediocrity

Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.

Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.

When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.

Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.

Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.

A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.

On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.

Here’s a second example:

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

All this perfection crap.

One reader wrote to me to complain. Surely, he said, there’s room in the world for a law firm that does work that’s “good enough for the occasion at a fair price.” Isn’t perfectionism the enemy of the reasonable bill?

That reader is undeniably correct.

Small matters, whether transactional or litigation, may not bear the freight of comprehensive factual or legal research. And lawyers who don’t recognize this — whether they work in-house or at firms — won’t last very long. For many matters, “good enough” is good enough.

But I’m not going to spend much time fretting about this, for three reasons.

First, there’s plenty of mediocrity in the world. Although it may engender outrage to type these words, the average lawyer is . . . well . . . average. You don’t have to search very far to find people who produce average work….

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