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If you have to ask the litigation department if something’s okay, it is probably not okay.: Difference between revisions
If you have to ask the litigation department if something’s okay, it is probably not okay. (view source)
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{{a|maxim|}}The [[JC]] has a view that, when trying to figure out what a contract means, {{maxim|if you have to ask the litigation department if something’s okay, it is probably not okay}} | {{a|maxim|}}The [[JC]] has a view that, when trying to figure out what a contract means, {{maxim|if you have to ask the litigation department if something’s okay, it is probably not okay.}} | ||
He gets to that point as follows: | He gets to that point as follows: | ||
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Here we call to attention our old friend the [[commercial imperative]]. Commerce is a [[Iterated prisoner’s dilemma|long game]], friends. There very few cases indeed where the short term benefit of winning on this point, now, outweighs the longer reward of ongoing revenue, gladly imparted, by a happy customer. These rule-proving exceptions come about where (i) you don’t particularly care for the customer, though even here, there are more effective ways of declining to do business with it; or (ii) customer, though hitherto valued, wanted and cared for, owes you a lot of money, and is midway through a swan dive whose outcome seems certain to involve burrowing into the side of a hill at which point all that money it owes you will go up in smoke. | Here we call to attention our old friend the [[commercial imperative]]. Commerce is a [[Iterated prisoner’s dilemma|long game]], friends. There very few cases indeed where the short term benefit of winning on this point, now, outweighs the longer reward of ongoing revenue, gladly imparted, by a happy customer. These rule-proving exceptions come about where (i) you don’t particularly care for the customer, though even here, there are more effective ways of declining to do business with it; or (ii) customer, though hitherto valued, wanted and cared for, owes you a lot of money, and is midway through a swan dive whose outcome seems certain to involve burrowing into the side of a hill at which point all that money it owes you will go up in smoke. | ||
===Exceptions to the rule=== | ===Exceptions to the rule=== | ||
Because the [[litigation department]]’s frame of reference is “what will the outcome be if this is litigated?” — whereas any sensible person’s perspective is “how, humanly, can we ''avoid'' this being litigated?” we can see that any answer you get from the litigation department will be tainted by the [[agency problem]]. Litigators want litigation; they ''like'' it. Litigation is what they do. It is in their nature. | Because the [[litigation department]]’s frame of reference is “what will the outcome be if this is litigated?” — whereas any sensible person’s perspective is “how, humanly, can we ''avoid'' this being litigated?” we can see that any answer you get from the litigation department will be tainted by the [[agency problem]]. Litigators want [[litigation]]; they ''like'' it. [[Litigation]] is what they do. [[It is in my nature|It is in their nature]]. | ||
Since litigation is, | Since litigation is, by any other measure, ''madness'', we should expect anyone who has given their professional life to it to be a source of bad advice. Thus, just as whatever the litigation department thinks ''is'' okay”, is probably ''not'' okay (if you had to ask the litigation department about it, you kind of ''knew'' it wasn’t okay, right?); equally, whatever the [[litigation department]] tells you is ''not'' okay is probably fine. | ||
We see this when asking for derogations from a (litigation department-imposed) policy insisting that, for example, all | We see this when asking for derogations from a ([[litigation department]]-imposed) policy insisting that, for example, all [[sovereign]]s with whom the firm contracts must waive their [[Sovereign immunity|immunity]], or that all offshore customers should appoint [[process agent]]s, even for terms of business or an NDA under which you are certain never to sue them. | ||
Litigation will say no anyway. Sub-rule: if something is okay, and you ask the litigation department if it is okay, they will say it is not okay. Meta-rule: ask a silly question, | Litigation will say no anyway, ''because it would bugger things up if you did''. | ||
Rule and corollary therefore: | |||
*Rule:{{maxim|if you have to ask the litigation department if something’s okay, it is probably not okay.}} | |||
*Sub-rule: if something ''is'' okay, and you ask the litigation department if it is okay, they will say it is ''not'' okay. | |||
*Meta-rule: ''ask a silly question, get a silly answer''. | |||
{{sa}} | {{sa}} | ||
*[[Relationship contract]] | *[[Relationship contract]] | ||