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Risk Anatomy

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When I was a child,
I spake as a child,
I understood as a child,
I negotiated as a child:
But when I became an eagle,
I put away my childish things.

1 Corinthians, 13:11


Are all risks fungible? Are all interchangeable? We would argue self-evidently not, though a visiting alien might have a hard time divining that from the way legal eagles go about their business.

A fearful negotiator will defend with equal fervour a counterparts or waiver of jury trials as she will an unconditional undertaking to indemnify an unrelated third party.

This seems to us to be a mistake. If there is anything a commercial lawyer can add to boost her present value to clients it is the superpower of quickly separating the few, terrifying items her client should be prepared to go to its grave before conceding, and the great preponderance of insignificant sludge that has accreted in the contractual forms, which if left in place, will blow away like so much chaff.

When you leave these things, a little part of you dies, but leave them, sometimes, you must.

At least where the commercial imperative means anything — and in commerce, we think it means a lot — the chaff will outweigh the mortal threats, ten-to-one. To the young attorney it may feel prudent to sweat the small stuff — time and attendance heartily recommends doing that — and it will certainly feel satisfying: but it is a hollow type of enjoyment. It quickly palls.

At first, it seems no more enjoyable night can be had by a trainee eaglet than one spent pockmarking a harmless draft with “and/or on its or their or their agent’s behalves, as the case may, for the time being, be” every fifteen lines — but as young sir graduates from his articles he may start to bear in mind how short our time above ground is, how potentially sweet, and how long thereafter we are all due to spend below it, where things are not so rosy. He might arrange his mortal affairs, accordingly, to make the most of his time above “the ditch”. If he does so, he will endear himself greatly to his clients. If you love something — even boilerplate — let it go.

So let us invert the reductionists’ usual refrain.


Devise means of identifying real inflection points — places where your contract really hinges, and the good offices of the commercial imperative will not help — focus on them, get them right, and leave the sanding and polishing of the rest to the inevitable action of time and its handmaidens: the wind, rain, tides and sun.

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