How To Get Through to LaymenAuthor(s): Will BernardSource: American Bar Association Journal, Vol. 55, No. 1 (JANUARY 1969), pp. 45-47Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25724645 .

Accessed: 28/06/2014 08:37

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to AmericanBar Association Journal.

http://www.jstor.org

This content downloaded from 91.238.114.31 on Sat, 28 Jun 2014 08:37:39 AMAll use subject to JSTOR Terms and Conditions

How To Get Through to Laymen

by Will Bernard

Bridging the communication gap between lawyer and layman is no longer merely a matter of public relations, of vindicating the legal profession. Today it is necessary to vindicate law itself, so it becomes the lawyer's public duty to com municate concretely and effectively with laymen. Justice Holmes's famous example of the limits of free speech, that one has no right falsely to cry "Fire!" in a crowded theater, taught more law to laymen than entire books by lawyers less gifted in communication. But every lawyer can reach the layman if he will follow a few basic rules.

ONG RECOGNIZED and long la

mented, the communication gap between lawyer and layman has sudden

ly become urgent business. "We are beyond abstract lessons in

legality!" cried an embattled labor leader recently.1 And indeed we are.

Abstract lessons in legality will no

longer do?not when legal issues are

front-and-center in the most wrenching

problems of our time. At the neighbor hood law office, at the TV interview, at the collective bargaining table, at the

community conference on law and

order, at the political caucus, even at

the private dinner party with friends, the quality of our communication with

laymen is being tried and tested?and

challenged. The very institution of law is under serious and sustained attack.

Yes, we are beyond abstract lessons

in legality. But concrete lessons in le

gality are needed as never before. We must get through to laymen not merely as a matter of public relations, to vin

dicate the legal profession, but as a

matter of public duty, to vindicate the

law itself. How can we narrow the communica

tions gap? Much wise advice has al

ready appeared in these pages. But the

problem today has a new look. In key respects, today's typical layman is a

different breed. Really to get through to him, we must refashion our commu

nication techniques to fit his new char acter.

Here are five suggestions to that end. They will apply in varying degree, depending on the lawyer, the layman and the occasion. But they are all use

ful in the basic task of talking law to

the layman of today.

I. Start With "Laythink" Today's layman is semisophisticated

about law. Rocked by the "law explo sion", beset by legal problems in his

everyday affairs, he is speaking and

thinking and worrying about law as never before.

Yet, he still views the law through layman's eyes. To get through to him, the lawyer must see the law as the lay man sees it. That is, the lawyer must use "laythink".

It isn't easy. Lawyers, steeped in

legal language and legal concepts, often have real difficulty in imagining how they sound to the layman.

Consider four expressions in com mon use by lawyers: "stale check", "burden of proof", "invitee" and "li censee". At quick glance, these may all seem to be pretty much alike in their

degree of legalness. Now, shift mental

gears for a moment and think how

they must sound to a layman. "Stale check", even to a layman,

says just about what it means. So does "burden of proof".

But what about "invitee" and "licen see"? I once heard a lawyer trying to

explain to a client the possibilities of

liability in case a visitor was injured in his home. In painstaking detail, the

lawyer pointed out the difference be tween an invitee and a licensee. But the client lost his way right near the begin ning, unable to figure out why an in vited guest was a "licensee" while a li

censed plumber was an "invitee". Had the lawyer used laythink, he would have chosen the expressions "business

visitor" and "social visitor" and come

through with ease.2

Laythink involves not only specific words but also broad concepts. To the

1. Time, March 1, 1968, at 34. 2. Arthur Prentice Rugg, once chief justice

of the Supreme Judicial Court of Massachu

setts, showed the right spirit when he ex

plained the difference between negligence, gross negligence and recklessness as the difference between a fool, a damned fool and a goddamned fool. Judge Magmder, Ave

Atque Vale, 28 Harv. L. Rec. No. 10, at 6, 7

(1959).

January, 1969 Volume 55 45

This content downloaded from 91.238.114.31 on Sat, 28 Jun 2014 08:37:39 AMAll use subject to JSTOR Terms and Conditions

How To Get Through to Laymen

Will Bernard is the pen name of Bernard Weissman. Mr. Weissman, a graduate of the University of Mich

igan (A.B. 1937, J.D. 1939) has been

writing "law for the layman" in news papers and magazines for the past twenty-one years and is the author of Law for the Family. He has been

writing 'The Family Lawyer", a column which the American Bar Association makes available to news papers, since 1964. The column is now being published in 524 daily newspapers.

layman, law is not divided into the classic categories of torts and agency and negotiable instruments. To him, automobile accidents is a category. So

is divorce. So is buying on time. Yet, even some law-for-the-layman books

cling stubbornly to our categories rather than his. Surely this is a hard

way to give him information. Our failure to come to grips with the

layman on his own terms costs us

dearly. This failure, more than any

thing else, nourishes the popular belief that the law is still?as a scornful play wright called it 200 years ago?"a sort of hocus-pocus science".3 True, some

of the layman's mistrust comes from

esoteric legal procedures and the ver

bosity of legal documents. We fret

(and we should) over deeds that have too many synonyms, contracts that

have too many clauses. But our reputa tion for obfuscation comes less from

wordy deeds or long contracts than from not meeting the layman on a level he can understand.

II. Get To The Point

Today's layman is in a hurry. He travels by jet, takes speed reading and

plays educational tapes while he drives. As never before, he is too busy (or thinks he is) to be patient while a law

yer leisurely exhibits his erudition. We must get right to the point?or get tuned out. As Oliver Wendell Holmes once said: "I agree with Carducci the Italian poet that a man who takes half a page to say what can be said in a sentence will be damned."4

It is not merely a matter of saving the other person's time. Brevity is worth striving for, also, because it can

dramatically improve the quality of the

message. As in sculpture, the art lies in what is cut away. Professor Prosser's

Torts is a masterpiece not only because

of the vast amount of scholarship he

put in but also because of the vast amount of irrelevance he left out.

III. Sweat Over Accuracy Today's layman is a skeptic. He has

been acutely sensitized to credibility gaps, not only in politics but also in ethics and history and sociology?and in law too. If he is misled once, he turns very, very wary. He has never

heard of the maxim falsus in uno, fal sus in omnibus, but that's what he be lieves anyhow.

To preserve (and to deserve) his

confidence, it is more essential than ever before to address him with the strictest regard for accuracy. Unhap

pily, we sometimes fall short. Consider a few recent samples of misguided guidance, aimed by lawyers at a lay audience:

"Every dog is entitled to one bite."

(Wrong, even in states without strict

liability laws.)5

"[The right of privacy] is not a common law right. Recovery for a

breach of this right can only be based on an existing statute." (Wrong in most states.)6

"The refrain sung by our children, Tinders keepers, losers weepers,' is

perfectly good law." (Wrong in all

states.)7

Of course, we all make mistakes.

Dealing with masses of difficult mate

rial, we cannot expect to be totally accurate.8 But we must resist the temp

tation to "get by", to assume that accu

racy is not very important in address

ing the layman. What merit is there in

being brief, simple and wrong? IV. Use Examples Today's layman is jaded. More and

more, he gets his information through pictures, not words. This puts us at a

disadvantage in communicating, be

cause the lawyer remains as wedded to

language as ever. Any lawyer, contem

plating the eighty-odd volumes of Words and Phrases, will understand what Justice Abe Fortas meant when he said: "My profession is words."9

But if we cannot abandon language, we can use it far more vividly. We can

use words that paint pictures. We can use words that go snap, crackle and

pop. Above all, to make our language strike home, we can use examples. An

example that truly fits can pay enor

mous dividends in getting through to

laymen. For instance:

No one knows how many minutes it

took Holmes to think up his example of the limits on freedom of speech: that there is no right to falsely cry "Fire!" in a crowded theater. But that

single example?quoted, discussed, dis

sected?has taught more law to laymen

than speeches, articles, even entire

books by lawyers less gifted in commu

nication.

Examples not only clarify. They

3. Macklin, Love a la Mode, Act II, Sc.

1 (1759). 4. Holmes-Pollock Letters (2d ed.) 245

(1961). 5. Prosser, Handbook of the Law of

Torts (3d ed.) 516 (1964).

6. 77 Corpus Juris Secundum 397-398.

7. Brown, The Law of Personal Prop erty (2d ed.) 23 (1955).

8. Nor as lucky as the late Professor Ze chariah Chafee. He once recalled that, while

reading proofs of his first book, he came

upon a statement that was "just plain wrong. I did not have the heart or the financial re sources to order this erroneous paragraph reset. So I said to Mrs. Chafee, 'I'll just have to let this mistake stand as it is, and when the critics jump on it, I'll frankly confess my error.' Three months after my book was pub lished, the United States Supreme Court de cided squarely in agreement with this state ment which I had longed to strike out." Chafee. Thirty-Five Years with Freedom of Speech, 1 U. of Kan. L. Rev. 1, 10-11 (1952).

9. Grey, Public Communication of United States Appellate Court Decisions 424 (1966).

46 American Bar Association Journal

This content downloaded from 91.238.114.31 on Sat, 28 Jun 2014 08:37:39 AMAll use subject to JSTOR Terms and Conditions

How To Get Through to Laymen

also, like blueberries in a muffin, add the zest and whet the appetite. And

they endure. Examples stick in the mind long after the generalities they il lustrate have faded away.

V. Give Reasons

Today's layman wants to know why. Handed some legal doctrine on a take it-or-leave-it basis, he is likely to leave it. Yet that same doctrine, plus the rea son for it, will win him over. For in stance :

What a difference it makes whether

the district attorney says to a newspa

per reporter "I can't comment on

that" or "I can't comment on that be

cause it might spoil the prisoner's chance of a fair trial." What a difference it makes whether

a lawyer says to a client "A will has to be drawn with meticulous care" or "A will has to be drawn with meticulous care because when it goes into effect, the maker of the will won't be there to

explain what he meant."

Taking the trouble to give reasons

may try the patience of the busy law

yer. Yet, in terms of getting his point across, nothing is more helpful. For when we demonstrate our reliance on

reason, we are putting the law's best

foot forward.

Sir Edward Coke said: "Reason is the life of the law."10 If we breathe that life into our communication, the

layman will listen.

10. 1 Coke's First Institutes (19th ed.) No. 138 (1832).

Calendar of Association Meetings Annual

Dallas, Texas August 11-15, 1969

(See complete information and registration form on page 1121 of the November, 1968, issue.)

1970 1971 1971

St. Louis, Missouri New York, New York

and London, England* San Francisco, California Washington, D. C.

Midyear

Chicago, Illinois (Palmer House)

August 10-14, July 1-10,

July 14-22, August 4-11, 1972 August 3-10, 1973

January 22-28, 1969

(Administration Committee, January 22; Board of Governors, January 23-24; Committees, Sections and other group meetings, January 24-26; House of Delegates, January 27-28.)

Atlanta, Georgia Chicago, Illinois New Orleans, Louisiana Chicago, Illinois Houston, Texas

Spring, 1969

February 18-24, 1970 February 4-9, 1971 February 3-8, 1972

February 15-20, 1973

February 1-5, 1974

May 21-24, 1969 Washington, D. C.

(Budget Committee, May 21-22; Administration Committee, May 22; Board of Governors, May 23-24.)

* ? The Board of Governors has adopted the following priority rule because of the possibility that more members will desire to attend the 1971 Annual Meeting in London than can be accom modated in the available hotel space:

"Registration priority for the portion of the 1971 Annual Meeting to be held in London, England, shall be given to Association mem bers who are members of the House of Delegates, Councils of Sections of the Association, Standing and Special Committees of the Association, and to members who shall have attended either

three of the five annual meetings held between 1966 and 1970 or two of the three annual meetings held between 1968 and 1970."

January, 1969 Volume 55 47

This content downloaded from 91.238.114.31 on Sat, 28 Jun 2014 08:37:39 AMAll use subject to JSTOR Terms and Conditions