Bryan Garner on Words

Blissful Ignorance: Bad writers may be happier than good ones

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Do bad legal writers know they're bad? Illustration by Sara Wadford/Shutterstock.

Incompetence doesn’t recognize itself. That’s the simplest, most elegant formulation of the well-known Dunning-Kruger effect, the psychological bias that acquired its name in the 1990s. The formulation is elegant because it implies, rightly, that competent people do recognize their shortcomings.

When it comes to writing, the Dunning-Kruger effect suggests that good writers are aware of their weaknesses, flaws and deficiencies. Poor writers are unconscious of them. That’s why I’ve often said—half-facetiously—that poor writers are happier people than good writers. Although English usage is only a small part of good writing, I believe that people who know Fowler’s Dictionary of Modern English Usage are considerably less happy than people who’ve never heard of lexicographer H.W. Fowler. The more acutely aware you are of language, the less happy you’re likely to be in everyday life.

For some, it’s probably better to know little to nothing of English usage. They’ll be happy. Ineffectual, but happy.

When teaching lawyers, one technique I use is to see whether the participants recognize good writing when they see it. I show them eight passages on legal subjects—the kind you might find in a well-edited journal. Four are excellent, and four are abysmal. There are no close calls. I declare in advance that I’ll go with the majority, and I warn them that the answers will be extremely lopsided. Only 5%-10% will be out of step with their colleagues.

The point is that if you can’t recognize good writing, there’s no way you could possibly produce it.

You’d like to see the test, you say? That’s a good idea. Let’s try it—not with my usual passages but with some others on legal philosophy. And we’ll do only four: two good and two bad. Please read them all the way through, and then mark them either G or B:

1. A thief walks into a bank, puts a gun to the head of a customer and announces that he will shoot unless the teller hands over all the money in the drawer. The teller does nothing. The thief shoots the customer, runs off and is never seen again. The customer dies of her injuries and her estate sues the bank, complaining that the teller should have handed over the money—it was only $5,000, let us imagine—to the thief. What should the court say?

2. Theories which assert there is a causal relation between, or concomitant variation in, the value of two or more variables states the conditions under which the variations occur, describes the entities which vary and states the scales of values and the variations on the several scales which are concomitant. If the conditions are precisely stated, if the entities are uniquely defined, if the scales and the variation is quantitative in nature, and if the statements of the conditions, the entities, and the variations are such that competent observers will agree that the conditions and entities have happened and that the measurements of the variations made by each observer is the same or different, the theory is an operational theory.

3. The “law” which has to do with the so-called “rights” of people, which is administered in courts and resorted to for the purpose of “governing” human conduct, are things essentially different than what are called “laws” in mathematics, mechanics and chemistry. It is not a descriptive statement which attempts to summarize or synopsize an observed sequence of external occurrences or happenings like the law of gravity or the second law of thermodynamics. It is not a kind of knowledge, but a series of directions which are rules of action that is designed to bring about certain supposedly beneficial social results.

4. In a very real sense, people can’t really know what their own philosophies are. A philosophy is a point of view, a way of seeing and valuing things, and it has meaning only when compared to other ways of seeing and valuing things. A completely adequate description of an individual viewpoint would take into account all other conceivable views of the same subject—an impossible undertaking. So anybody’s attempt to describe a shifting point of orientation must be fragmentary and incomplete. So, too, it would have to emphasize dissents at the expense of harmonies, for the ways in which someone clashes with the environment can be more easily detected and described than the ways in which that person conforms to it.

Bryan A. GarnerBryan A. Garner

The interesting thing is that some people will say it’s a matter of taste. But can that be right? Do some people have a taste for wrong notes in music, for high scores in golf and low-scoring football teams? Do people have a taste for spoiled milk? Wrong computations in arithmetic? Sloppy work? I don’t think so.

Some people insist, though, that it’s all a matter of taste—and that tastes can vary widely. De gustibus non est disputandum, goes the old Latin maxim: There’s no disputing taste. But if readers’ tastes really vary so widely, how is it possible to produce a magazine intended to appeal to all intelligent readers? (Or all intelligent lawyers, like this one, ahem.) How could you hope to do that?

The fact is that two of the passages above would be publishable in reputable journals or in book form, and two of them are utterly unpublishable without major overhauls. Two of them are riddled with grammatical blemishes that utterly disqualify them. They flunk the test for good writing, which must register itself clearly in the reader’s mind. Good writing makes readers feel smart; bad writing makes readers feel stupid—or at least confused. And two of those passages are mind-numbing, quite apart from being thoroughly ungrammatical.

Oh, you want to know which ones? But don’t you already? Sure you do. If you don’t, then show this little quiz to some co-workers. See what they say. As I said before, there are no close calls here: You have two superbly written passages and two horrible ones. The first of the good ones, by the way, was written by Ward Farnsworth of the University of Texas at Austin School of Law, and the second by Lon Fuller, late professor at Harvard Law. The others are mostly of my own invention.

In April in this space, I put the question to you: Who wrote the first English-language dictionary? Was it the lawyer John Rastell, whose Les Termes de la Ley dates from 1523; or the defrocked priest Robert Cawdrey, whose Table Alphabeticall appeared in 1604? Did Rastell’s work qualify as an English-language dictionary? When I last reported the results, no votes had arrived. Now the tallies have been completed. With all the votes of ABA Journal readers in, the answer is that we are hopelessly divided: 50% say Rastell and 50% say Cawdrey. Each received a total of eight votes.

This story was originally published in the December 2023-January 2024 issue of the ABA Journal under the headline: “Blissful Ignorance: Bad writers may be happier than good ones.”

Bryan A. Garner is the president of LawProse Inc., the chief editor of Black's Law Dictionary, the author of The Winning Brief and Legal Writing and Plain English, and distinguished research professor of law at Southern Methodist University Dedman School of Law.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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