Legal Ethics

Occam’s Razor And The Dunning-Kruger Effect

Why do we make things more obtuse, more complicated than they need to be?

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I have been thinking (I know, assuming facts not in evidence) about Occam’s Razor, the principle that says, essentially, that the simplest answer is usually the right one. Who was Occam and why we should care? William of Ockham was a late Middle Ages (late 13th to mid-14th century) philosopher and theologian.

We lawyers tend to perseverate, to twist ourselves into knots trying to explain sophisticated legal concepts to clients, often needlessly complicating things. We are not pretzels, and so we shouldn’t tie ourselves up like them.

Unless those clients are also lawyers, the clients’ eyes will glaze over in a futile attempt to understand what we are trying to say. The principle of Occam’s Razor is, I think, a predecessor to the KISS concept (and I don’t mean Gene Simmons or Paul Stanley.) KISS means “keep it simple, stupid.” That applies to just about everyone in every field, but I think it holds a special place in lawyering.

Why do we make things more obtuse, more complicated than they need to be when explaining to a client what is going on, why what’s happening is happening, and the best way to solve the problem? Clients want answers, not law review treatises on what the law was, is, could be, may be, and the like. They want to receive risk assessments based on the lawyer’s best advice.

Remember that we don’t make the business decisions; that’s the client’s job, but it’s our job to provide the clearest advice in the simplest terms, considering the upsides and downsides and laying them all out for decision.

Perhaps our complicated and often-convoluted talk arises from our fear of not being sure about what the best advice is. We don’t necessarily know what the best advice is for several reasons, but first and foremost, at least in my mind, is whether the client has truly told you absolutely everything you need to know to form an opinion. Even the slightest change in the fact pattern can change the advice given. We dinosaurs have all learned that lesson the hard way.

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I always used to tell a client to barf up everything he knew, not being selective about what he thought was important, and that I would make the judgment call about what was relevant and what was not. That was my job, not his, but his job was to tell the truth. If he told the truth the first time, then he wouldn’t need to remember any other versions.

Alas, that didn’t always work out. On more than one occasion, the client omitted a material fact — whether consciously or not — one that changed the dynamic of the case and its strategy. I hated when that happened, and it happened more than once.

Trying to explain complicated and complex legal concepts to a client was always challenging. It was even more challenging to try to explain it to a trier of fact, an opposing counsel (naturally suspicious of everything I said), or even a mediator. So, putting the concept into the simplest possible way was always the best, and sometimes the business person was the best one to explain those concepts, person to person (gasp), without lawyer jargon in between.

One case of mine involved documentary collections, e.g., letters of credit, documentary drafts, and the like. Unless you work in the area, it can be hard to understand. So, to try to persuade a plaintiff’s counsel that the bank had done everything right (always a challenge), the business person, our letter of credit guru with me by his side, explained the whole procedure in simple layperson’s terms, and plaintiff’s lawyer dismissed the case.

As newbie lawyers, it’s no surprise when a more senior lawyer (and that can be almost anyone when you’re a newbie) is intimidating, dismissing whatever you say as insignificant or having nothing to do with the matter at hand. You don’t know that she’s any more competent or knowledgeable than you are, but because she exudes confidence, you feel inadequate to the task at hand. Been there. I think all lawyers have been there whether in a courtroom or a conference room.

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Ever wonder why people who “fail up” are promoted into positions while you scratch your head trying to figure out how that person got that gig? Huh? Why couldn’t I have had it? “What’s wrong with me?” is the normal reaction when things like that happen and they happen all the time.

Exuding “overconfidence” is one reason why people are dazzled by the superficial, when, in reality, there is either no there there or very little. This overconfidence is called the Dunning-Kruger effect; it’s illusory superiority and the failure to recognize one’s inability, one’s limitations. You can call it bluster, bluff, whatever, but it’s real. Know anyone like that?

I think lawyers in Los Angeles do. In the newest installment of Tom Girardi’s career (think plaintiff tort lawyer and the Housewives of Beverly Hills), the State Bar of California has finally awakened from its slumber and charged Girardi with misappropriation of millions of dollars from his clients. Trust fund violations are the bar discipline equivalent of the death penalty.

Girardi is under a temporary conservatorship, he is in bankruptcy, his firm is kaput, and the bar has already placed him on inactive status. Is this discipline action akin to simply closing the barn door after the horse has scampered off? Is this TLTL — Too Little, Too Late? Is this just another example of the bar’s failure to do what it is supposed to do, protect the public? If so, it may be just as well for the bar to go back to sleep. Nighty-night.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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