Actuary Law


Lawyers writing about actuarial topics — badly

In my last post I pointed to ASOP 41 and the importance of clear communication by actuaries.   Judge Richard Posner of the US Seventh Circuit Court of Appeals recently bemoaned the problems created by some appellate lawyers who could not communicate pension and actuarial concepts clearly to lay judges.  In Chicago Truck Drivers, Helpers & Warehouse Workers Union (Independent) Pension Fund v. CPC Logistics, Inc., No. 11-3034, 2012 WL 3554446 (7th Cir. Aug. 20, 2012), he discussed the challenges the panel of judges faced in a withdrawal liability case under ERISA:

Hideous complexities lurk in the briefs in this appeal.  Many appellate lawyers write briefs and make oral arguments that assume that judges are knowledgeable about  every field  of law, however specialized. The assumption  is  incorrect. Federal judges are generalists. Individual judges often have specialized knowledge of a few fields  of law, most  commonly criminal law and sentencing, civil and criminal procedure, and federal jurisdiction, because  these fields generate  issues that frequently recur, but sometimes of other fields as well depending on the  judge’s career before he  became a judge or  on special interests developed by  him since.  But the appellate advocate must not count on appellate judges’ being intimate with his particular legal nook—with its special jargon, its analytical intricacies, its commercial  setting, its mysteries. It’s difficult for specialists to write other than in jargon, and when they don’t realize the difficulty  this poses  for generalist  judges neither do they realize the need to write differently.

Federal pension law is a highly specialized field that judges encounter only intermittently.  Yet the lawyers in this case made no allowance for our lacking their specialized knowledge.

After quoting from both parties’ briefs to provide an example of what he was talking about, Judge Posner wrote:

All this was terribly opaque to us because the parties failed to provide context—failed to explain what exactly the  pools  are, why  interest rates are  important to withdrawal liability, what the “funding interest assumption” is, and why what they confusingly call a “cap”  on the Segal Blended Rate (confusingly because in most years the “cap” required as we’ll see the substitution of a higher rate than the Blended Rate) caused a loss to CPC when the “cap” was removed.

And so at the oral argument one of the judges felt compelled to ask one of the lawyers, pleadingly, whether she  could explain in words  of one syllable what the case was about. She was a good lawyer and tried, but, perhaps surprised by the question, failed.

There’s an important lesson here for those of us who work at the intersection of legal and actuarial work.   We need to step back from all the jargon.   Knowing all the jargon of actuarial techniques and provisions of the Internal Revenue Code may make us valued advisors to our clients, but carries with it the risk that we forget that the rest of the world, even smart appellate judges, don’t live and breathe actuarial equivalencies and discount rates.   Sometimes being a good lawyer means being a good translator.