Graeme Johnston / 13 March 2022
This is an article I wrote in June 2021 and published on a blogging platform. A comment by Lisa McClory reminded me of it today. I’m reproducing it here as I think it fits well with the key Juralio theme of helping people manage complexity.
Better roads sometimes encourage so much more traffic that they increase congestion: this is an example of the potentially harmful consequences of “induced demand.”1 Many cities now seek to manage it by legal restrictions or taxes. Broader problems of abundance can arise from excessive food and alcohol, digital overload and much else.
Tools for expression
That brings us to tools for the expression and processing of legal concepts. The journey from handwriting to the printing press to more portable word-generation tech in the nineteenth century,2 on to digital tech in the late twentieth, has been a long one. But a significant bridge has now been crossed: specialist machine operators are no longer essential. Lawyers themselves can generate more written words without any significant immediate cost other than their own time. Even wordprocessing’s supercharged but long-underperforming accessory, document assembly, is becoming more accessible.
Such tools are, obviously, good in many ways. But they can also facilitate over-complication. The most significant costs tend to arise downstream, as the initial words are negotiated, finessed, applied, copied, interpreted, argued over and inflated over time. As there is usually some justification for adding a few extra words (“why take the risk?”), it is all too easy to add a new nuance, or accept it from others. It’s the way of the world. But eventually you wake up with an over-complicated, unmanageable monster. And the increased complication also risks greater fragility as the scope for contradictions and loopholes increases.
Tools for analysing
A second type of digital tech also risks unintentionally sustaining the problem. Tools for coping with the firehose of words can ironically reduce the incentive to tackle over-complication. Examples include rule-based systems for handling complicated regulations, and the use of software to analyse natural language for the purpose of disputes, investigations, transactions and contract management.
The point is simply that, over time, unreflective use of these technologies risks feeding over-complication and related issues such as incomprehensibility, alienation, wasted time, management costs, anomalies, gameability by the best-resourced and hence inequality.
There is no magic solution, but here are five ways I try to cope with the problem, in addition to the usual lawyerly obsession with clarity and risk-coverage.
- When presented with, or tempted by, something complicated, focus on how things may realistically play out in future. How proportionate is this extra length and complication to the risk being addressed? How does it compare to addressing the issue in a simpler way, or not at all? Is it an edge case? What’s the impact if it does arise? Is it the kind of issue that needs a definitive legally enforceable solution in the context of this relationship, or is it better to leave it for resolution later?
- Reflect on the difference between complexity and complication,3 and the limitations of the latter as a tool for addressing the former. Really detailed rules for dealing with unpredictable futures are something to be cautious about.
- Impose constraints: this text must not be longer than A pages or B words. This will not take longer than C minutes or D hours. The budget for this is E. Just as work tends to expand to fill the available time, complication can easily be allowed to expand to fill or exceed the available budget.
- Name the problem and the solution: the computing world uses terms like feature creep, software bloat and refactoring for analogous topics. I quite like them, but I work in that domain so they feel natural. The pejorative nature of the first two also appeals. Over-complication, simplification and design are words of more general acceptability, perhaps. Whichever words you choose, I believe that making it a thing can help.
- Periodically simplify: nuances, complications and cruft tend to creep in over time. Often you just have to accept them. That makes it important to set aside some quality time at reasonable intervals (e.g. yearly) to consciously revise templates and playbooks, accepting valuable additions from recent experience but also challenging things and deleting or simplifying where possible. For me at least, it does require setting aside some quality time to get into a state of flow.4
I don’t do all of these things perfectly, of course. But having some tactics helps.
One final thought. Part of the reason that these problems are so hard to address is because of the adversarial, or at least negotiated, context in which they arise. Also, many lawyers fear (depending on the country, legal system, client context, organisational culture and much else) finding themselves in trouble for missing something: “Nobody gets fired for over-complicating.” However, one thing I’ve found over the years is that when I try to suggest that a simpler approach might be helpful for everyone, many people will enter into the spirit of it, particularly if they’re over-loaded with work already. It can be quite refreshing.
(1) https://en.wikipedia.org/wiki/Induced_demand. See this Infographic by TUMI summarising the concept. The magnitude varies: see this review of research literature, commissioned by the UK Department for Transport, 2018
(2) Hoeflich (2013) – From scriveners to typewriters: document production in the nineteenth century law office – Hoeflich, 2013.