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{{quote|
{{quote|
{{script|Herculio}}: Ay, drafted, is ’t; <br>
{{dsh a condition more honoured}}
But to my mind, though my inner eagle is attuned<br>
And to the manner born, this is a Condition <br>
More honour’d in the breach than the observance.<br>
This heavy-handed sheaf of windy guff <br>
Doth impose a weighty tax upon our distant aspirations;<br>
Thy clipping tickets with their malty turn of phrase <br>
Soil our accord with oily additions. Who wouldst draw <br>
Not the heaving strokes of palpitating consensus <br>
But a wicker frame of ghoulish aspect <br>
Post-dated with the odds of curly misadventure?
:—{{otto}}, {{dsh}}
:—{{otto}}, {{dsh}}
}}  
}}  
Line 18: Line 8:
:—With apologies to Mike Tyson}}
:—With apologies to Mike Tyson}}


JC, being given to making up social science on the hoof, is working on a theory that when we buy the services of a commercial law firm — and, specifically, when we buy them to make [[contract]]s for us — we are not buying words, nor even the underlying legal content that they express, but the general, beatific, ''peace of mind'' that comes from paying ''serious people'' to do sober things. You don’t ''need'' to understand their words or concepts, because they have done that for you and, by their simple presence, intimated — but to be clear, not ''told'' you in so many words — that ''everything will be okay''.  
{{drop|[[But no-one reads this, do they?|G]]|iven as he}} is to making social science up on the hoof, JC is working on a theory that when we buy the services of a commercial law firm — and, specifically, when we buy them to make [[contract]]s for us — we are not buying ''words'', nor even the underlying ''legal content'' that words carry, but a more general, beatific ''peace of mind'' that comes from paying ''serious people'' to do sober things for us. That involve words.


This illusion lasts thereafter as long as no one casts an analytical eye across the documents. The moment anyone does — and look: no one reads legal agreements for the hell of it, so assume such a person is being paid to pick holes — that illusion usually vanishes.  
To its principals, the contract preparation process is a sombre mystery. They are not ''meant'' to understand the actual words, and may cause themselves trouble if they try. It is better just to take generalised comfort that there are a ''lot'' of words, they seem legally sonorous, they are strung together in carefully constructed, if forbiddingly unbroken, slabs and the battalions of advisors who have gathered at the banquet on either side to pick them over will, by the time the busboys are serving coffee and warming up the disco, have {{strike|maximised their chargeables|made peace with the legal content}}.  


Important operators — words like “not” —  will be inexplicably absent when needed and irritatingly there when not. Square brackets, [[blob]]s and placeholders will appear just where you dearly wish for [[certainty]]. Critical terms will be subject to non-existent subclauses. Carelessly lobbed [[boilerplate]] will ram-raid painstakingly crafted rights.  
They don’t ''need'' to understand the words, because their agents have done this for them. By their very existence, their agents intimate that ''everything will be okay''.  


And that is where the parties have had in mind the original deal. But life is rarely as mundane as that. Invariably, since execution, neither side will have paid the docs the blindest bit of attention. They may not know where they are or, if enough time has passed, even if there ''are'' any docs. Why would they? No one has insisted on, performed, or seemed advertent to those hotly argued covenants and termination rights. Agreed billing mechanisms and amendment procedures have been ignored. By their behaviour the parties may, quite consensually, have systematically contradicted key tenets of the contract, for years.  
This illusion lasts as long as no one subsequently casts an eye across the documents. The moment anyone does — and, look: no one reads legal agreements for the hell of it so assume she is doing so, for money, to pick holes in them — the illusion tartly vanishes.  


None of this matters in the slightest until the relationship hits the skids. Suddenly each side seeks legal advice, new counsel comb the contract, poring over minor details, and hunting for clinchers in a babbling, confused, inchoate hellscape of random words that it is now impossible, except by coincidence, to map to any coherent course of behaviour let alone the partiesʼ actual dealings with each other.  
Crucial operators — words like “not” —  will, without explanation, be absent where needed or present where not. Square brackets, [[blob]]s and placeholders will impotently stand in for pivotal passages and vital variables. Forms you now dearly wish were signed, dated and legibly filled-out won’t be. Critical terms will be conditional upon non-existent subclauses, whose only remaining trace in the document comes in the form of a forlorn [[double full stop]]. Carelessly lobbed [[boilerplate]] will ram-raid painstakingly crafted rights.<ref>Our old friends the [[no oral modification]] clause and the [[Contracts (Rights of Third Parties) Act 1999]] exclusion are often causes for deep regret.</ref>


This is because they delegated this performative act to [[legal eagle|lab coated specialists]] with precious little grasp of the commercial basis at the start of the relationship who, not having been involved since, have absolutely zero now — who hardly can be blamed now for failing to predict how the relationship developed in the meantime.  
And that is when the parties ''have'' kept their original deal in mind. But commercial life is rarely as mundane as that: invariably, since they bade their legal teams a fond farewell fifteen years ago, ''neither'' side has paid these terms the blindest bit of attention. They may not now know where they are. If enough time has passed, they may not even know that there ''are'' any such terms.  


Commissioning legal contracts in this way is to pay good money to buy (or, for all you know, ''sell'') a lucky dip of random [[put]]s and [[call]]s that will only be revealed in case of [[tail event|catastrophe]]. Your best hope, therefore, is that the relationship continues to flourish, no catastrophe happens, and no one ever looks at the contract again.  
''Why would they?'' Though once hotly contested, no one since has insisted upon, performed, or cared less about these windy covenants. No-one present at their ordination remains: the last bade his sad, redundant farewell in 2009.


Which begs the question: ''what are you paying for?''
In any case: by consensual behaviour, the parties have systematically contradicted these key tenets for years.


The ugly secret of professional practice is that the work product is mostly mediocre because, for the most part, ''it doesnʼt matter if it is not''.  
None of this matters unless the relationship hits the skids. It will only be then that, having sought legal advice, each side will rekindle an interest in that contract. Their new counsel comb it, poring over minor details, hunting for clinchers in a babbling, confused, inchoate hellscape of random words that it is now impossible, except by coincidence, to map to any coherent course of behaviour — let alone the partiesʼ ''actual'' dealings with one another.  


Ninety-nine per cent of contracts are never litigated. This is not because they are flawless. It is because their parties donʼt fall out.
This is because the [[performative]] act of “doing the legals” all those years ago was delegated to “[[legal eagle|specialist]]” professionals with but a flimsy grasp of the commercials at the time of their engagement and, obviously, none thereafter, and who thus can hardly be blamed for not predicting how things would pan out in ensuing decades.  


To its principals, the contract preparation process is a sombre mystery. You are not even ''meant'' to understand the actual words they send you, and you may cause yourself trouble if you try. It is better just to take that generalised comfort that there are a ''lot'' of words, they seem somehow legally sonorous, strung together in carefully constructed, if forbiddingly unbroken, slabs, and the battalions of advisors who have gathered on either side of the banquet to pick them over will, by the time the bus boys are serving coffee and warming up the disco, understand it all.  
Commissioning legal contracts in this way is to buy (or, for all you know, ''sell'') a lucky dip of random [[put]]s and [[call]]s. Whatever comes out of the sawdust on signing day you must then rebury for an indeterminate period, only to be revealed, if at all, upon the eve of some distant [[tail event|catastrophe]].  


All that skirmishing and sniping must, after all, ''do'' something — mustnʼt it? It must advance what the respective advisors take to be their clientsʼ interests, however imperfectly they understand them.
The principals’ best hope, of course, is that catastrophe never visits, their relationship continues to flourish and ''no one looks at the contract again. ''


In the same way trenches and battle fronts thrust and counterthrust, the lines move back and forth. Since the people who wrangle these textual monoliths are part of an educated elite, a kind of emergent wisdom settles upon the project. Its net effect — even if you cannot fathom how or why — will be a comforting conviction that everything will generally be ''okay''.
But this rather begs the question: what good, in the first place, is a contract that for your own wellbeing you must never again consult?


But what if this assumption was — ''wrong''?
The reality of professional practice is that much work product gets away with being like that because, for the most part, ''it doesnʼt matter if it is not''. A vanishingly small percentage of contracts are ever litigated. This is ''not'' because they are “good contracts”, but because they describe good relationships: the parties donʼt fall out. ''Almost all contracts expire untested.'' <ref>{{maxim|If you have to read the contract, you have already lost}}.</ref> 


To be clear, the question is not merely “I wonder whether people buy Big Law to cover their backsides?”
All that skirmishing and sniping must surely ''do'' something, no? Must it not advance what these agents take to be their clientsʼ best interests?  


Of ''course'' they do. Everyone knows that.  
In the same way that forward lines thrust and counterthrust, the trenches in a negotiation move back and forth. The wranglers of these textual monoliths are an educated elite, so an [[emergent]] wisdom settles upon the project whose net effect — even if we cannot fathom how or why — is the principals’ comforting conviction that everything will generally be ''okay''.


I was getting at the fact that the Big Law work product, when you do read it, is dismal. This is because *it is not designed to be read*.  
It calls not for craft, elegance, design or architectural panache. The clear expression of commercial intention is not the point: that is for the principals to see to; it lives its life through their every interaction. Those who do not understand each other will not be in business for long.  


It is designed to just occupy space. It is like that expanding polystyrene stuff they spray inside internal partition walls for soundproofing.
This is the magnificent horror of the [[attorney work product]]: it is hard to do business with it, but impossible without it: it is a ticket to ride, but your enduring hope when you hop aboard is that you will not need to show it to anyone; that you can reach your destination without an inspector.


There is just no craft, no elegance, no design, no architectural panache, no basic economy. It is just this tortured, brutalised, monstrous torrent of dreck, from end to end.
On this view, legal prose just occupies space. It is a trace: a calling card; a curled little pavement offering that says “''a lawyer was here”''.  


These people are meant to be wizards of language, after all. They should deliver the most beautiful, clear, elegant product.
It is not the customerʼs business. It is ''lawyerʼs ''business''.''


That they don’t is a kind of final triumph of form over substance.
====Reader feedback ====
This seems to have struck a chord. With readers. {{plainlink|https://www.linkedin.com/in/richardmoorhead|Professor Moorhead}} recommends Gulati and Scott’s ''{{plainlink|https://press.uchicago.edu/ucp/books/book/chicago/T/bo14365624.html|The Three and a Half Minute Transaction}}'' for similar anecdotes about associates with no idea of the provenance or meaning of apparently vital, inviolate terms. This has been a feature of JCʼs solitary inhouse crusade:
{{quote |''SCENE: A room in the [[legal department]]. Filled with reforming zeal, JC encounters a bizzare term in a standard form. He enquires of the responsible lawyer, an uninquisitive veteran of ten or more years:
 
{{script|JC}}: What does this do?<br>
{{script|Legal eagle}}: Donʼt know.<br>
{{script|JC}}: What does it even mean?<br>
{{script|Legal eagle}}: Donʼt know.<br>
{{script|JC}}: Can we take it out?<br>
{{script|Legal eagle}}: [''horrified''] Absolutely not. [[Chip]] put that in.<br>
{{script|JC}}: Who is [[Chip]]?<br>
{{script|Legal eagle}}: Donʼt know.
 
''NARRATOR: Chip was the GC, three GCs ago. He left before the merger. Which happened in 1998.''
 
Exeunt}}

Latest revision as of 16:53, 22 March 2024

Herculio: Ay, drafted, is ’t;
But to my mind, though eagle-tuned
And to the manner born, this Condition is
More honour’d in the breach than the performance.
This heavy-handed sheaf of windy guff
Doth impose a weighty tax upon our distant aspirations;
These ticket-clippers with their malty turns of phrase
Soil our accord with oily additions. Who wouldst draw
Not the heaving strokes of palpitating consensus
But this wicker frame of ghoulish aspect
Post-dated with the odds of shouty misadventure?

—Otto Büchstein, Die Schweizer Heulsuse

Everyone has a contract until they get punched in the mouth

—With apologies to Mike Tyson

Given as he is to making social science up on the hoof, JC is working on a theory that when we buy the services of a commercial law firm — and, specifically, when we buy them to make contracts for us — we are not buying words, nor even the underlying legal content that words carry, but a more general, beatific peace of mind that comes from paying serious people to do sober things for us. That involve words.

To its principals, the contract preparation process is a sombre mystery. They are not meant to understand the actual words, and may cause themselves trouble if they try. It is better just to take generalised comfort that there are a lot of words, they seem legally sonorous, they are strung together in carefully constructed, if forbiddingly unbroken, slabs and the battalions of advisors who have gathered at the banquet on either side to pick them over will, by the time the busboys are serving coffee and warming up the disco, have maximised their chargeables made peace with the legal content.

They don’t need to understand the words, because their agents have done this for them. By their very existence, their agents intimate that everything will be okay.

This illusion lasts as long as no one subsequently casts an eye across the documents. The moment anyone does — and, look: no one reads legal agreements for the hell of it so assume she is doing so, for money, to pick holes in them — the illusion tartly vanishes.

Crucial operators — words like “not” — will, without explanation, be absent where needed or present where not. Square brackets, blobs and placeholders will impotently stand in for pivotal passages and vital variables. Forms you now dearly wish were signed, dated and legibly filled-out won’t be. Critical terms will be conditional upon non-existent subclauses, whose only remaining trace in the document comes in the form of a forlorn double full stop. Carelessly lobbed boilerplate will ram-raid painstakingly crafted rights.[1]

And that is when the parties have kept their original deal in mind. But commercial life is rarely as mundane as that: invariably, since they bade their legal teams a fond farewell fifteen years ago, neither side has paid these terms the blindest bit of attention. They may not now know where they are. If enough time has passed, they may not even know that there are any such terms.

Why would they? Though once hotly contested, no one since has insisted upon, performed, or cared less about these windy covenants. No-one present at their ordination remains: the last bade his sad, redundant farewell in 2009.

In any case: by consensual behaviour, the parties have systematically contradicted these key tenets for years.

None of this matters unless the relationship hits the skids. It will only be then that, having sought legal advice, each side will rekindle an interest in that contract. Their new counsel comb it, poring over minor details, hunting for clinchers in a babbling, confused, inchoate hellscape of random words that it is now impossible, except by coincidence, to map to any coherent course of behaviour — let alone the partiesʼ actual dealings with one another.

This is because the performative act of “doing the legals” all those years ago was delegated to “specialist” professionals with but a flimsy grasp of the commercials at the time of their engagement and, obviously, none thereafter, and who thus can hardly be blamed for not predicting how things would pan out in ensuing decades.

Commissioning legal contracts in this way is to buy (or, for all you know, sell) a lucky dip of random puts and calls. Whatever comes out of the sawdust on signing day you must then rebury for an indeterminate period, only to be revealed, if at all, upon the eve of some distant catastrophe.

The principals’ best hope, of course, is that catastrophe never visits, their relationship continues to flourish and no one looks at the contract again.

But this rather begs the question: what good, in the first place, is a contract that for your own wellbeing you must never again consult?

The reality of professional practice is that much work product gets away with being like that because, for the most part, it doesnʼt matter if it is not. A vanishingly small percentage of contracts are ever litigated. This is not because they are “good contracts”, but because they describe good relationships: the parties donʼt fall out. Almost all contracts expire untested. [2]

All that skirmishing and sniping must surely do something, no? Must it not advance what these agents take to be their clientsʼ best interests?

In the same way that forward lines thrust and counterthrust, the trenches in a negotiation move back and forth. The wranglers of these textual monoliths are an educated elite, so an emergent wisdom settles upon the project whose net effect — even if we cannot fathom how or why — is the principals’ comforting conviction that everything will generally be okay.

It calls not for craft, elegance, design or architectural panache. The clear expression of commercial intention is not the point: that is for the principals to see to; it lives its life through their every interaction. Those who do not understand each other will not be in business for long.

This is the magnificent horror of the attorney work product: it is hard to do business with it, but impossible without it: it is a ticket to ride, but your enduring hope when you hop aboard is that you will not need to show it to anyone; that you can reach your destination without an inspector.

On this view, legal prose just occupies space. It is a trace: a calling card; a curled little pavement offering that says “a lawyer was here”.

It is not the customerʼs business. It is lawyerʼs business.

Reader feedback

This seems to have struck a chord. With readers. Professor Moorhead recommends Gulati and Scott’s The Three and a Half Minute Transaction for similar anecdotes about associates with no idea of the provenance or meaning of apparently vital, inviolate terms. This has been a feature of JCʼs solitary inhouse crusade:

SCENE: A room in the legal department. Filled with reforming zeal, JC encounters a bizzare term in a standard form. He enquires of the responsible lawyer, an uninquisitive veteran of ten or more years:

JC: What does this do?
Legal eagle: Donʼt know.
JC: What does it even mean?
Legal eagle: Donʼt know.
JC: Can we take it out?
Legal eagle: [horrified] Absolutely not. Chip put that in.
JC: Who is Chip?
Legal eagle: Donʼt know.

NARRATOR: Chip was the GC, three GCs ago. He left before the merger. Which happened in 1998.

Exeunt

  1. ↑ Our old friends the no oral modification clause and the Contracts (Rights of Third Parties) Act 1999 exclusion are often causes for deep regret.
  2. ↑ If you have to read the contract, you have already lost.
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