- Laura L. Dominic
THE CURSE OF KNOWLEDGE: YOU’VE FORGOTTEN WHAT YOU DIDN’T KNOW
How can too much knowledge be a curse? Isn’t knowing more always better? Not when it interferes with your ability to teach what you’ve learned. The curse of knowledge is the idea that once you know something well, you have a difficult time thinking about what you know from the perspective of someone who doesn’t. It never dawns on you to consider the fact that the less-informed person doesn’t know what you do. You forget that there was a time you that you didn’t know what you know now. This explains why mortgage lenders feel perfectly comfortable telling a first time homebuyer, “Your credit score of 675 makes you an Alt-A borrower, and given that, you’re going to have a higher than average LTV. You ought to consider getting a delayed adjustable. You’ll pay a higher rate at first, but won’t get that immediate “bounce” that comes with most one-year ARMs.”
Trial lawyers are not immune to the curse of knowledge. To the contrary, they may be plagued more often than other professionals. Not only do litigators live and breathe the syntax and semantics of law, they become immersed in the language of a particular area of law. The result – patent lawyers talk about “obviousness,” “claim construction,” and “equitable estopple”; products lawyers talk about “implied warranties,” “the Uniform Commercial Code,” and “strict liability”; and commercial lawyers talk about “collateral security,” “indemnities,” and “the statute of limitations.”
When lawyers talk to juries, they may think they are speaking concretely, because to them the words make perfect sense. But to the jurors who haven’t spent the last two years learning about “venous cannulation” the explanation that your doctor met the “standard of care when inserting the indwelling arterial catheter at a 30 degree angle” will be nothing more than a vague message that doesn’t stick.
What’s more, the better-informed person often blames the less-informed person for not understanding. Elizabeth Newton’s oft cited “tappers and listeners” study (Ross, 1996) exemplifies this sender-based phenomenon. Participants were separated into two groups. One group was assigned to be “tappers,” and the other “listeners.” The tappers were told to choose a tune from a list of well-known songs that all participants admitted knowing. The listeners were told to guess the song. Newton asked the tappers how often they thought the listeners would be able to decipher the tapping. They predicted 50% of the time. In reality, the listeners only guessed the song correctly 2.5% of the time. This is because the tappers, quite literally, had the song playing in their head. They were cursed with knowledge of the tune. It was impossible for them not to sing along, in their mind, when they tapped the tune. Of course, all the listeners heard was Morse code.
I often tell lawyers to pull out a notepad the minute a new case comes across your desk. Write down everything you don’t know. Keep a list of the questions you had when the case was fresh. Make a list of all the things you had to research, or ask your expert about. Two years later, when you present the case to a less-informed party (judge, jury, mediator, or arbitrator), you can avoid the curse by pulling out your notebook and reminding yourself of all the things you didn’t know when you were less-informed than you are now. And as you’re putting your opening together, remind yourself that your audience doesn’t have the song playing in their head. You have to put it there for them. Otherwise you risk merely “tap, tap, tapping.”
Ross, Lee, and Andrew Ward. “Naive realism in everyday life: Implications for social conflict and misunderstanding.” Values and knowledge (1996): 103-135.