Template:M intro design no-one reads this

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

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 contracts 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.

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 tartly vanishes.

Important operators — words like “not” — will be absent without explanation when needed and irritatingly present, with no better reason, when not. Square brackets, blobs and placeholders will appear just where you dearly wish for certainty. Things you thought would be signed, or dated, or properly filled-out, won’t be. Critical terms will be subject to non-existent subclauses. Carelessly lobbed boilerplate will ram-raid painstakingly crafted rights.

And that is where the parties have kept the original deal continuously in mind. But life is rarely as mundane as that: invariably, since execution, neither side will have paid these terms the blindest bit of attention. They may not know where these terms now are or, if enough time has passed, even if there are any such terms.

Why would they? No one has insisted on, performed, or seemed advertent to those hotly argued covenants and termination rights for years. No-one present at their ordination has worked for the firm for years.

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.

None of this matters in the slightest unless the relationship hits the skids. Suddenly each side seeks legal advice, their new counsel,rejoicing in a fresh licence to create mayhem, comb the contract, 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 each other.

This is because the parties delegated this performative act — you know, “doing the legals” — to lab coated specialists with a threadbare grasp of the commercials even at the time of their engagement who, not having been involved since, have absolutely zero grasp of it now, and who hardly can be blamed for failing to predict how the relationship would develop in between times.

Commissioning legal contracts in this way is to pay good money to buy (or, for all you know, sell) a lucky dip of random puts and calls. What you pulled out will only be revealed, if at all, a long time later upon the advent of catastrophe. Your best hope, therefore, is that no such catastrophe visits, your relationship continues to flourish 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 much work product is 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: it is because their parties donʼt fall out. Almost all contracts expire untested.

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 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.

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?

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 what if this assumption was — wrong?

To be clear, the question is not merely “I wonder whether commercial principals — should I say “agents” — hire law firms 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.