April 4, 2020

Intelligent Perceptionlow bow to the legal laity

As a boy, I treasured a copy of Successful Drawing by the late, great Andrew Loomis. More accurately, I treasured third-generation photocopies of some of the pages.

The book was then out of print. I happened on a pirate PDF via Napster. Low on cash, decades short of an iPad, and miles from any print shop, I scrounged together what seemed to me the key pages, and smuggled them into art class. Nudes necessitated subterfuge. Once in the art room, through the administrators’ domain into the teachers’, the pages were safe.

Printouts didn’t come easy back then. I copied the pictures and skipped the prose. The pictures were enough to cherish.

A few years back, Loomis’ books came back into print. I relished the chance to finally buy copies straight. Opening the books as books for the first time, I landed on the first pages, for the first time. Double-column walls of type. What I found in those columns ranks among the most readable, inspiring, well-constructed teaching text I’ve ever seen. My regard for Loomis’ drawings, which I still love, as an amateur, suffered eclipse only by regard for his prose, which I can admire now as a professional.

This is turning into an infomercial for the dolts who own the copyrights and keep sitting on them. Here is the part that led me down this particular path, forced me to take Loomis back and apply it to my own work in law.

People tend to skip block quotations, but that would be getting this post very backwards!

The response to drawing is related to the emotions and experience of the individual, and is wholely apart, so far as I know, from the teaching of art. Yet I do not believe art can go very far unless the artist has some sort of an understanding of this response. An artist can go all his life without realizing why his work does not appeal. Even successful artists may not really know why their work does appeal, though they thank heaven it does.

To understand why a drawing does or does not appeal, we must recognize a certain ability that is developed in every normal individual from early childhood through adult life. The term “intelligent perception” I think comes as close as any to describing this faculty. …

The minute the spectator sees a change of proportion, distortion, change of form, color, texture, he realizes something is wrong. The cleverest imitation imitation will not fool him. The dummy in the department store window is a dummy to everyone. …

We artists cannot ignore this intelligent perception and expect to secure intelligent response, or even favorable response, to our work. Make up your mind that your audience will react to your work just as it does to life itself. Intelligent perception finds only truth convincing. The layman does not need to know anything of art to know whether he likes your work or not. We can use all the arguments, alibis, and defenses in the world; we can explain ourselves hoarse; but we cannot affect something so deeply imbedded in human consciousness. If what we say in paint is untrue, in color values or effect, the spectator feels it, and there is nothing we can do to convince him otherwise.

This line of thinking can give a helpful structure to my own meanderings through various points of legal craft. Of course it can.

Why is it good write out the purposes of policies and provisions in legal terms? Why is it good to write those things in plain, everyday terms, even—no, especially—for deals between large, well resourced firms and educated people? Why is it good to share the history and thinking behind changing legal terms and policies publicly?

I’m not here to claim that I have each answer, ground out to a fine empirical point. But Loomis suggests that I know the category from which the answers might be found. I know where to go looking.

What are the ways people feel about law, legal terms, and written policies? What is the wisdom they have, multiplied by hundreds of millions of adult Americans, not to mention friends abroad, that comes to bear on legal work like mine?

For the most part, we like to ignore the law. Ideally, it simply doesn’t come up day-to-day. So sussing out the feelings we can have about things legal comes easiest by asking how we express ourselves when law goes wrong. The feelings come from specific stories. But what more general words do we cry out when we just have to object?

I’m no professional philosopher. I look forward to reading more of them along this line of thinking, soon. But as a first-stab, cartoonish pass, I can associate a few words. We feel injustice when treatment is unfair. We feel it when outcomes appear arbitrary. We object when process is obscure, intransparent, and espcially obfuscated. We feel it when the mechanisms of good and fairness extend discrimination, robbery, oppression, and greed instead. We feel injustice when those responsible for administering process or decision manifest ignorance of the context or the process overall.

To put it cutely, the facts of humanity that make Kafka and Mockingbird good make bad lawyers and bad lawyering bad.

Worse yet, it hasn’t hard for people to tell. They can tell the difference between a form, a policy, a decision that has no regard for them, that makes some conscious concessions to appearing considerate, that effuses consideration through and through. If and when they bother to pay attention, they can find the bolted-on provision, the hastily drafted change, the tacked-on reference or amendment that casts the integrity of the whole into doubt and derision. They grasp that substance plenty well, even if they miss the legal nuance.

I am only more conscious now of my own failings to meet the standards people will bring to my work, and which I ought to have expected them to bring. I see areas where I wasn’t bold enough, and small, cowardly half-measures for which I readily took full credit, most often from myself. But I see also a few shining bits of truly productive self-deprecation, most of all when I’ve been quick to submit new terms for reading to those who’d be subject to them. When I was not merely “open” to, but insisted upon, their candid feedback.

If there has been any pattern to my own unstructured wander through these problems, it’s this: humility has been the truest guiding light. I’m fond of saying that I don’t know anything about law or contract drafting, as a point of style. I’ve had the substance on in the fleeting moments when I really believed it.

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