OneNDA

Legal eagles love the idea that standard, boilerplate, tedious terms that make up the lion’s share of commercial legal discourse are special. Everyone — not just lawyers, come to think of it — likes to believe herself special, privy to something critical; dangerous; delicate — information that, should it fall into the wrong hands, may wreak great ill upon its owner or the poor unsuspecting random.

The design of organisations and products →Go uptown Why did it take the legal community two thousand years to come up with this idea? Index: Click ᐅ to expand: Design Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

But the quotidian is a utility, not an asset. It doesn’t get more quotidian than legal boilerplate. We should, as a community, regard this as a free public resource, and not some productivity creation intiitative to keep battalions of legal eagles in well-paid but soul-destroying work.

No type of legal contract is more boilerplate than an NDA. The NDA is pure, abstracted, essence of boilerplate. Boilerplate is all there is.

Kudos, therefore, to the team at TLB for doing something about it.

The JC put his sclerotic old shoulder to the wheel, for whatever that is worth and commends his friends, relations and readers; especially those who occupy places in the firmament, or up the fundament, higher than his own — that’s more or less all of you — to do what you can to get your own organisations behind this excellent initiative. Start with the NDA, who knows where it may lead?

Later ...

Well, readers, against his darkest suspicions, it looks like this OneNDA thing might work! The working group managed to defend against the inevitable special pleading, committee drafting, the pedantic culpa in contrahendo-style commentariat to which we agents of the tragic commons resort by irrepressible force of habit: through sheer willpower OneNDA generated a nice, simple, pleasant first edition. Not perfect — nothing is — but absolutely good enough.

It’s too early to stand on the poop-deck with a mission accomplished banner, but OneNDA is getting there. So, in a gentle further shove, here some observations about what it could all mean.

Simplification beats technology

A counter-intuitive proposition: if you simplify properly, you don’t need technology. There is no need for automation, document assembly, even a mail merge is probably over-engineering. This is to observe that the conundrum facing modern legal eagles is not one of service delivery, but service in the first place. Fix the content, and the delivery challenges fix themselves. The JC’s maxim here: first, cut out the pies.

This leads to an even more counter-intuitive proposition: if you simplify properly so you don’t need technology, it beomes easier to use technology. The fewer options, subroutines, caveats and conditions precedent in your legal forms, the easier it is to run technology over them. This is called irony.

It’s not the form, or even the content, but the consensus that matters

If you devised your own short-form NDA, however elegant, you could expect it to be rejected or marked up to oblivion by the rent-seeking massive.

But imagine if, somehow, the same short-form NDA had a wide-spread community commitment. The dynamic would be very different. Those who built it would use it, sure. But those who didn’t would look upon it not with suspicion, but with trust: “this is a community standard: I can get comfortable using it too”. No-one got fired for following the crowd.

OneNDA is just such a community effort; interested people came from far and wide to offer to help; everyone checked their agenda at the door. This was what Wikimedans call a “barn-raising” effort. The community came together for the greater good of all.

Now once a barn is raised and community feels ownership in it, it is the very fact of the barn, rather than how it was built or what it is made of, that is its value. Community assets accrue to the benefit of everyone. The foundations, day one, might not be ideal — is anything? — but at the outset no-one (in the community) has any interest in undermining them, much less setting fire to the roof: it is in everyone’s interest that the barn does the job it was built for. Everyone has skin in the game. The more people use it, the more they are incentivised to make sure it stands. The more people use it, the more “good enough” becomes “perfection”.

The hard lines discourage rentsmithing around the edges

Once that common standard exists, with the hard lines OneNDA has drawn around itself, there is a further subtle advantage: it will dampen peripheral legal-eaglery around small, irritating edge cases (not to mention out-and-out pedantry).

We all know the common fripperies thrown into negotiation of an NDA by way of a dominance display between legal eagles: indemnities; exclusivities; non-solicitation; licencing and so on. Where notices these will quickly be rejected out of hand, the courtship display required to remove them is still tedious and it takes time.

But it is hard to rentsmith without a “host” contract. By drawing hard lines around itself, the OneNDA makes itself unavailable to act as that host. It frustrates the rentsmith. The party wanting them has to create a new agreement for the purpose, but it is not likely to do that for fear of looking stuipid. The standard template discourages peripheral negotiation. This is an additional, unintended benefit.

See also

• Confidentiality agreement
• Perfection is the enemy of good enough
• The quotidian is a utility, not an asset