Template:M intro design no-one reads this

Everyone has a contract until they get punched in the mouth

—With apologies to Mike Tyson

Herculio: Ay, drafted, is ’t;
But to my mind, though inhouse attorney I am
And to the manner born, this is a condition
More honour’d in the breach than the observance. This heavy-handed sheaf of windy guff
Doth impose a weighty tax upon our aspirations;
They clip their tickets and with swinish phrase
Soil th’accord with oily additions; it takes
From our consensus, though perform’d at height,
The pith and marrow of our attribute.

—Otto Büchstein, Die Schweizer Heulsuse

JC, being given to making up social science on the hoof, is working on a theory that when you buy the services of a commercial law firm — and, specifically, when you buy them to make contracts for you — you are not buying the words, or even the underlying legal content that the words express, but a more general beatific peace of mind that comes from hiring serious people. You don’t need to understand their words or concepts, because someone else has done that for you and they have, by their simple presence, intimated — but to be clear, they havenʼt told you — that everything will be okay.

This illusion lasts thereafter as long as no-one casts a critical, or even analytical, eye over 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 of comforting certainty vanishes. Important operators —words like “not” — will be inexplicably absent when needed and irritatingly there when not. Square brackets, blobs 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.

And you will find that, since execution neither side has paid any of these words the blindest bit of attention. Why would they? No one has insisted on, performed, or seemed advertent to hotly argued termination rights and conditions precedent. Agreed billing mechanisms and amendment procedures have been ignored. The parties may, quite consensually, have systematically contradicted apparently key tenets of the contract, for years.

Then, suddenly, the relationship hits the rocks, each side seeks legal advice, new counsel comb the contract, and finds a babbling, confused, inchoate hellscape of random words that it is now impossible, except by coincidence, to map to the parties actual dealings with each other.

This is because they delegate this performative act to lab coated specialists who had precious little grasp of the commercial basis at the start of the relationship, have not been involved since and who can hardly be blamed for failing to predict how the relationship developed in the meantime.

To commission a legal contract in this way is to pay good money to buy (or, for all you know, sell) a lucky dip of random, assorted puts and calls, that will only be revealed in case of catastrophe. Your best hope, therefore, is that the relationship continues to flourish, no catastrophe happens, and no one ever looks at the contract again.

Which begs the question: what are you paying for?

The ugly secret of professional practice is that the work product is mostly shoddy, because for the most part, it doesnʼt matter if it is not. Ninety nine percent of contracts are never litigated. This is not because they are flawless. It is because their parties donʼt fall out.

The contract preparation process, to principals, is a thing of 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 general comfort that there are a lot of them, they seem somehow legally sonorous, they are 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 they’re serving coffee and warming up the disco, understand it all.

All that skirmishing and sniping must after all do something — it must advance what the respective advisors take to be their clientsʼ interests, however imperfectly they understand them. The same way trenches and battle fronts are meant to thrust and counterthrust, and since the people who wrangle these textual monoliths are part of an educated elite, a kind of emergent wisdom settles upon the project whose net effect by the end of the process — even if you cannot fathom how or why — will be a comforting conviction that everything will generally be okay.

What if this assumption was — wrong?

To be clear this is not merely “I wonder if people buy Big Law to cover their backsides?” Of course, they do. Everyone knows that.

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 is designed to just occupy space. It is like that expanding polystyrene stuff they spray inside internal partition walls for soundproofing.

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.

These people are meant to be wizards of language, after all. They should deliver the most beautiful, clear, elegant product.

That they don’t is a kind of final triumph of form over substance.