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[[File:Club.png|450px| | {{colourtable|red|[[File:Club.png|450px|center]]}}{{subtable|''That OneNDA, in full:''<br> | ||
{{OneNDA 1}} | |||
{{OneNDA 2}} | |||
{{OneNDA 3}} | |||
{{OneNDA 4}} | |||
{{OneNDA 5}}}} | |||
}}{{Quote|''SYNOPSIS: Some cheeky little hobbits form a fellowship and set out on a perilous adventure to confront the fearsome [[mark-up|Smarkup]], a wingèd dragon made out of [[boilerplate]] that jealously guards the huge pile of [[rent]] it has appropriated from nearby merchants.'' | |||
''First act goes well.''}} | |||
{{quote|In Bozo Baggins’ burrow, there was a sign above his desk, carefully hand-painted by his uncle Dildo: | |||
“{{Maxim|The quotidian is a utility, not an asset}}.”}} | |||
[[Boilerplate]]. No legal form has more of it than an [[NDA]]. To read one is to behold pure, abstracted, ''essence'' of [[boilerplate]]. In an NDA, ''[[boilerplate]] is all you get''. | |||
Yet generations of [[legal eagle]]s, back to the time of the [[First Men]] — lo, even unto the very [[Children of the Forest]] — have dug themselves into slit trenches to argue the toss over this workaday tract. It has been some kind of insane compulsion: not one of them ''enjoyed'' it; not one of them saw any ''point'' in it; they found themselves ''compelled'' to do it; drawn to it, like moths to a gaslight; lemmings to a chalky cliff. | |||
“I must negotiate this [[NDA]], because ''this is what I do''. [[It is in my nature]].” | |||
Kudos, therefore, to the team at [http://www.lawboutique.co.uk TLB] for doing something about it.<ref>Don’t just read about it here: go see: https://www.onenda.org</ref> | |||
The [[JC]] put his sclerotic old shoulder to the wheel, for whatever that was worth, and commended his friends, relations and readers to do the same; especially those who occupy places in the firmament, or up the fundament, higher than his own. | |||
Start with the NDA, who knows where it may lead? | |||
===Later ... === | |||
The hobbity fellowship resisted the impulses to which we tragic agents of the [[Tragedy of the commons|commons]] resort by habit: the bickering, the [[special pleading]], [[committee]] drafting, pursuit by ring-fixated goblins muttering [[Culpa in contrahendo|baffling ancient curses]]: despite cannons to the left and right, onward rode the OneNDA [[Steering committee]], and generated a nice, simple, pleasant first edition. | |||
Not [[Perfection is the enemy of good enough|''perfect'']] — is anything? — but absolutely [[Perfection is the enemy of good enough|good enough]]. | |||
It’s too early to stand on the poop-deck in front of a mission accomplished banner, but OneNDA is getting there. We remain hopeful and optimistic. So, here some observations about what it could all mean. | |||
====Simplification beats [[technology]] — and ''helps'' it.==== | |||
''If you simplify, you may not need [[technology]]''. There is no need for [[Automated contract review|automation]], [[document assembly]], even a mail-merge gilds the lilly. Despite what the [[Thought leader|thought-leaders]] say, the problem facing modern [[legal eagles]] is not ''[[service delivery]]'', but ''[[Legal service|service]]'' itself. | |||
''Fix the content, and the delivery challenges fix themselves''. | |||
An ironic consequence: ''if you fix the content, you need less [[technology]], '''and''' the [[technology]] tends to work better''. To design for technology, design for ''no'' technology. The fewer options, subroutines, [[Caveat|caveats]] and [[conditions precedent]] in your legal forms, the easier they will be to automate. You will get all kinds of second order benefits too: fewer complaints, fewer comments, less time auditing your monstrous catalogue of hateful templates. | |||
{{maxim|First, cut out the pies}}. | |||
====It’s not the [[form]], or even the content, but '''''consensus''''' that matters==== | |||
Once upon a time — until 2021 — if you devised your own [[NDA]], however brief or elegant, you could expect it to be ''rejected''<ref>There ''is'' a “battle of the forms”, even if not apparent to the [[doyen of drafting]].</ref> or [[Mark-up|marked up]] to ''oblivion'' by the [[rent-seeking]] massive.<ref>The [[JC]] knows this, because he’s tried it. No [[counterparts]] clause! No waiver of jury trials! It was still worth doing, but it didn’t solve the problem.</ref> Your voice was but a guttering candle in a gale of [[special pleading]]. Collectively we despaired of NDAs, but, taken individually, we found ourselves curiously ''invested'' in them. Hence, slit trenches. | |||
But an outbreak of public spiritedness can change that, and that was OneNDA: interested people came from far and wide to help; everyone<ref>Everyone except the [[doyen of drafting]] himself, that is: [https://www.adamsdrafting.com/onenda-is-mediocrenda-thoughts-on-a-proposed-standard-nondisclosure-agreement/ toys: say goodbye to pram!] </ref> checked their agendas at the door. This was what Wikipedians call a “[https://en.wikipedia.org/wiki/Barn_raising barn-raising]”. 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 structure might not be perfect but nor is there any interest in undermining it, much less setting fire to the roof: ''everyone has a stake in the barn.'' ''Everyone'' has [[skin in the game]]. The more it is used, the stronger it gets. | |||
The more people use it, the more [[Perfection is the enemy of good enough|“good enough” ''becomes'' “perfection”]]. | |||
Thus, tiresome complaints that, for example, it refers to “information that is in the public domain” and not just “information that is public” — I mean, what a [[Knee-slide and jet wings|zinger]] — fall away because ''no-one cares''. ''Who'' would take that point?<ref>I can think of one person.</ref> Why? ''Everyone knows what it means''. | |||
Community consensus, like an internet protocol, benefits everyone. | |||
====The hard lines discourage [[rentsmithing]] around the edges==== | |||
And it gets better. Once a common standard exists, the hard lines around it dampen [[rentsmithing|peripheral legal-eaglery]] around edge cases, because ''it isn’t worth it'' to argue them. Not even for a [[pedantry|pedant]]. | |||
We all know the common fripperies thrown into an NDA negotiation by way of a dominance display: [[indemnities]]; [[Exclusive licence|exclusivities]]; [[non-solicitation]] and so on. These are quickly rejected out of hand, but the courtship ritual of inserting then removing them is not just [[tedious]]: It is costly, distracting, and takes time. | |||
By insisting on hard lines around itself, OneNDA makes itself unavailable to host that kind of pointless ''rutting''. And it is hard to [[rentsmith]] without a “host” contract. To do it, the [[Rentsmith|rentsmithor]] must find a new host agreement, or make one, for a plainly cosmetic purpose. It will be discouraged from doing that for fear of looking stupid. | |||
''A standardised form discourages peripheral negotiation''. | |||
====Shifting the knee of the curve==== | |||
[[File:Contract volume curve.png|450px|thumb|right|The more a contract costs to negotiate, the fewer of them you can do. There’s no free option if everything is negotatiated.]] | |||
[[File:Contract curve shifted.png|450px|thumb|right|Adding a free, no-negotiation option creates a range of customers you couldn't afford to onboard, but incentivises marginal cases to take the free option too]] | |||
Creating a simple and standard alternative affects the “legal complexity curve”.<ref>This is a concept I basically made up on the hoof. Go with me on this one.</ref> It pulls it ''down'' and to the ''right'', being the directions you want it going in. | |||
Let us tell you a story, through the prism of some fancy charts. They are stimulations of a real-life case. | |||
The problem: a broken contracting process: too slow, too costly, too many errors. The “complexity distribution’ was just as you would expect: lots of low-value contracts, a few high-value ones. The errors were spread evenly throughout: most, therefore, in the low value contracts. | |||
The idea: reduce the negotiation workload and somehow give the team more time to focus on the higher value contracts. | |||
The approach: standardise just the lowest value contract. It was easiest to fix, most boring, and had the highest volume. Leave the rest be. | |||
Outcome: Overnight, half the contract volume was automated. | |||
But ''then'': | |||
*Volumes in the automated contract ''doubled overnight'': as it was faster easier and error-free, the marginal cost plummeted, so the volumes spiked. | |||
*Some “marginal” customers in adjacent categories chose to move to the free contract: they were happy to trade speed and cost for customisation. It’s a simple trade: sign this and trade now, or tie your legal team up for three weeks. Thus the “knee” of the curve deepened and shifted to the right. | |||
*Volumes of the ''highest'' value categories went up, as the team had more bandwidth, processed the contracts more quickly and with fewer errors. | |||
*As a result, total output of the team ''doubled''. | |||
The one thing that did ''not'' happen was the forced [[redundancy]] of the team. They were busier than ever, only on more challenging stuff. | |||
{{sa}} | {{sa}} | ||
*[[Confidentiality agreement]] | *[[Confidentiality agreement]] | ||
*[[ | *[[Perfection is the enemy of good enough]] | ||
*[[ | *[[The quotidian is a utility, not an asset]] | ||
{{ref}} | |||