NOVEMBER 19, 2021 – Simon Winchester wrote a book entitled, The Perfectionists, an interesting work about precision engineering. In the world of machines and micro-machines, precision to the nth-degree marks the difference between function and failure. Perfection applies with equal force to many fields, from music to medicine. It even rules in the practice of law, which is otherwise replete with hedges, like “maybe,” “it depends,” “hold harmless,” “including, but not limited to,” and “there’s no guarantee.” Yet, among these uncertainties is ample certainty, manifest most notably in the adverse consequences of missing a filing deadline.
Now enter nuance, which is to precision what fog is to crystal. Whereas precision is brittle—no room for error—nuance is subtle and fleeting, immeasurable yet noticeable—like the width of a violinist’s vibrato, the force of a painter’s stroke, the arc of basketball player’s free-throw, a sailor’s instincts while navigating through heavy seas. Nuance is the “magic sauce” that distinguishes human achievement from the work of automatons. If precision is what makes the world spin, nuance is what “makes the world go round.”
Lately, I’ve examined more closely how nuance—“immeasurable but noticeable”—occurs in the practice of law. A prime example arose recently in drafting a contract termination provision. In striving for precision amidst untold possibilities, my client risked boxing himself into a corner. What if his attempt at precision created further ambiguity? I explained a legal principle of interpretation that ambiguous language is interpreted against the party that drafted it. If my client exerted too much influence in drafting, that principle could swing against him. As is the case with all contract provisions, context is everything—another element of nuance. Generally, precision is desirable in legal drafting. But when accounting for all critical factors at play, the best approach is often a function of nuance. So it was in the instance I described.
When applied to our nation’s dysfunctional political wrangling, nuance is largely absent while precision abounds. Democrats are “radical, liberal socialists”—open and shut case. Republicans are “miscreant racists”—no exceptions. We use precise epithets unencumbered by nuance. This bias has existed ever since religious extremists—think Pilgrims and Puritans—landed upon our shores. (“You don’t believe in witches? You must be one yourself. Guilty as charged!”) Fast forward to “No taxation [to pay for the war against France, against whom colonists fought enthusiastically] without representation!” and its extension—“And no new taxes for the fight for independence from taxation without representation!” Later came the Civil War over the South’s precisely defined position on slavery and its shield-as-weapon, “states’ rights.” Then came universal prohibition of alcohol—no exceptions. More recently, we returned to our puritanical roots with #MeToo, in which no room for nuance was allowed, no distinctions to be made among a killer shark, a mud-covered pig, and a flirtatious dolphin snagged by a suddenly cast fishing net in waters of changing mores.
Precision is good, but without nuance, we’re flopping fish out of water.
(Remember to subscribe to this blog and receive notifications of new posts by email.)
© 2021 by Eric Nilsson
