But no-one reads this, do they?
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The design of organisations and products
The Jolly Contrarian holds forth™
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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?
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
See also
References
- ↑ Our old friends the no oral modification clause and the Contracts (Rights of Third Parties) Act 1999 exclusion are often causes for deep regret.
- ↑ If you have to read the contract, you have already lost.