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Nonlawyers seem to think corruption is the biggest risk to confidentiality. It’s not. Lawyers are keenly aware of how their economic fortunes depend on not betraying clients. More importantly, the people that would bribe a lawyer for information tend to be other lawyers. No lawyer wants to be known as loose lipped among other lawyers.

Lawyers see the biggest risk to confidentiality as a lack of education and instinct. The education side of things is largely handled during law school and bar preparation, and then finally during onboarding, usually the first job someone gets out of law school. Lawyers learn the theory and then on the job they learn to develop “ethics antennae” that alert them to when they need to take a step back, think a bit, and maybe look up some rules.

The biggest risk to confidentiality is actually people’s love of stories. We all love telling and listening to them. It’s here that lawyers, even as they consciously try to respect confidentiality, once in a while break the spirit of its strictures. 

People tell stories for a variety of reasons. They might want to throw something over to a colleague for reactions, ideas, feedback, or emotional support. They might want to make someone feel better, give food for thought, or get a laugh. They might want to look smart, tough, cunning, or wise. 

This kind of break with confidentiality produces what we can label impressions and rumors. Lawyers like anyone love to read tea leaves and chit chat so these are perceived to be valuable. A story modified to satisfy confidentiality might give a better idea of how opposing counsel thinks or how a client might behave. 

This risk applies to other professions. The principle is general. But I haven’t been an accountant or a doctor for example so I won’t focus on other industries. 

Lawyers are credentialed people and have a grip on language that many do not. That can breed a kind of arrogance about the relevant area of real-world knowledge. This too is a general problem, one that people who become verbally skilled suffer from, where they mistake verbal ability for ability with the things the words gesture toward.

The instinctive default for lawyers when they’re mincing words is plausible deniability. You can reliably know whether you have it or not. It’s a skill that any heavy verbal can obtain, and has to, in order to be a white collar. 

The paradox of confidentiality is the situations where it is needed most also tend to be the most interesting, story-tellable situations. There’s no getting around this. We’re inclined to talk about the juiciest events and lawyers are either fighting over something valuable or helping protect transactions worth protecting. 

This is very unfortunate because the better the story, the harder it is to duplicate, the less common it is, and the easier it is to guess the actual situation. It’s fascinating how much people can guess from modified stories. They can often figure out the matter and the people involved. 

There are only so many high-profile mergers; only so many clients who are demanding and sophisticated; only so many people in a specific industry. 

A good nonfiction writer must grapple with the tension between the point they want to make and the need for examples, anecdotes, or case studies. Law students face the same issue in the classroom.

One of the biggest obstacles facing law students is the tension between cases and principles. Law professors struggle to cultivate in students a felt sense that all cases are gestures, failed or successful, to principles. Law students often trip on the myriad details in particular cases. 

Practicing lawyers often do the same, only they can for example fool themselves into believing that they are being tested on how well they follow the most recent majority holding. The incentive of American judges is to think about ideas threading through many situations, rather than the myriad details of any particular litigation that comes before a court. 

Likewise, a reader will evaluate the worthiness of a piece based on how it helps them understand things that matter or do things that matter. No case, no example, no anecdote, no case study, can bring about understanding except as a gesture to something larger. If you tell an anecdote by itself, then you’re gossiping. Accompany it with a lesson, and you’re a font of wisdom. 

The worst offenders of the rule requiring examples might be philosophers, who for long stretches of text give no examples. The ones they give are very hypothetical, thin on detail and not concrete. This is possibly why philosophical writing is so frequently useless, not because it’s too abstract for others to understand, but because the authors got lost in their own abstractions. 

The primary benefit of an example in writing is to keep the writer and the reader grounded in the real world. It is a feature, not a bug, of language fluency that its practitioners find pleasure in playing with the language itself. Poets and rappers do this with rhyme schemes. But the utility of language depends on how well it is connected to other real world events.  

An example can never prove a point, even if the readers believe it did. An example helps explain a point, or fails to do so. The point is larger than the example, and going through every example to which the point applies would still not count as the point because nothing would thread all the examples together. 

Selectivity of examples is an essential skill for a nonfiction writer. An example must help explain why an idea is the right one or why the alternatives are not as good. Therefore they should be as detailed as they need to be, but no more. An example should be concrete so the reader has to do less mental labor. 

Fiction writing offers up a good comparison. Here “examples” are the beats in the story, which are expressions of a theme. If a bit of fiction writing is bad, it may be bad because there’s no coherent, compelling theme. But if the fiction is good it will have one. 

In fiction writing the “principles” (themes) are, when done well, about emotion. The “examples” and “case studies” here can be idealized; fantastical; archetypal. They can be dramatized for the relevant theme because it is fundamentally emotional. 

The norm of readership in fiction writing, and for consumption of fiction media generally, is to charitably suspend disbelief for every bit of logic other than emotional ones. A good reader with a background in armed combat will try to resume disbelief after reading an inaccurate description of a grenade going off, but will be judgmental about character motives. 

There is a limit to the reader’s charity for fiction, and it does not have an analogue in nonfiction. The reader feels free, and should feel free, to be judgmental about any truth claim in the piece. If it’s there, it’s shark food. 

Satires and parodies offer a border case, where the reader needs sophistication to understand the point, and evaluate the piece as a vehicle for the point. As with sarcasm, satires and parodies can be mistaken for fiction when they are not. Often bad fiction is a nonfiction writer’s attempt to shove principles into a story and pretend they are themes.

In nonfiction writing, examples, anecdotes, and case studies should:

• Be true
• Be concrete
• Be supportive to the point or inquiry, and
• Possess no more and no less detail than is necessary.

Intellectuals might agree that people should use plain English but they tend not to, especially with each other. Intellectual writing is about creating the appearance of intelligence for the author and the reader, it’s not about saying something interesting. Here we have a strong break between what people say they do and what they do. 

When intellectuals get together at events or offices, they primarily compete with each other for recognition. Credit is the currency within intellectual groups: for generating ideas and for distributing them.

An idea will tend to earn recognition if it is true and new. It can’t be something that’s been said before. The idea also has to be argued and supported under criticism, which has a culling effect. 

But even if an intellectual doesn’t create a recognition-worthy idea, they can distribute one. This is where teaching ability comes in. Good teaching means clear communication and that’s also hard to do. 

Even the brightest, hardest-working people stare at blank pages far too often. The reality is one that academics know all too well. They have to meet certain publication quotas and one way around this is to brush gold paint over a pile of turds. 

Intellectuals create the appearance of saying something smart in different ways.

• Use more difficult language.
• Use fashionable terms like “vector” and “data point”. 
• Gesture to multiple disciplines like throwing in quantum physics.
• Mention highbrow materials like a Nature study or Nietzsche. 

If you’ve been fluent in a discipline then you can read its journals, and if you do, you’ll likely have the experience that I and many others have had: Hardly anyone is saying something new, and if it’s new, it hardly qualifies. Intellectuals are producing tiny variants on what’s been said before.

To figure that out, though, you have to get through the semantic barriers erected by people in the discipline. And again, if you’ve been fluent in a discipline you know how often the language gets in the way of communication. 

It is in the interest of everyone to accept the situation because it enables a much easier game to play for recognition, manipulating language, rather than discovery and innovation.

There’s nothing wrong with saying something that’s been said before, as the particular reader or listener might not know, or the point may bear repeating. But it should be stated plainly. It’s better to be recognized for real value than who made the better castle in a verbal sandbox.

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