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The psychology of legal relations
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In Robert Cialdini’s survey of the psychology of persuasion, a freebie. The classic example is the flower from the Moonies at the airport so pleasingly lampooned in Airplane! The idea is if you receive a gratuity — even a tatty flower you didn’t want, pressed on you by a glassy-eyed hippy when you least needed a free fricking flower, struggling through arrivals with three suitcases and a rolled-up Turkish carpet your spouse bought on impulse — you still feel morally obliged to reciprocate somehow. If you are in the middle of a sales pitch, the obvious way of doing that is buy buying the product.

There are two other dimensions to this worth considering.

Obligation as a social glue that binds us

The late David Graeber observed[1] that an ongoing relationship involves a running series of mutual obligations, and it is vital to the health of the relationship that they are never fully discharged. Would you want to, exactly, repay your debt to your parents for your childhood? Could you, even? If you did, what then? Are you done with Mum and Dad?

Those in deep relationships give freely to each other without obligation, account or expectation of exact recompense. They are gladly in each other’s debt. They’re vulnerable to each other. That’s — literally — part of the deal. It’s a slackness that allows for things to shift and crack under the vicissitudes of life.

Those who provide services only against an expectation of exact payment in full have shallow relationships since, upon discharge of that payment, either party can dissolve the relationship immediately, without notice or fear of offence or retribution. It’s just business. but that’s a trade, not a relationship.

There’s that emergent property, again: you can’t reduce a relationship down to a series of trades.

So anything that indicates an investment, made in your partner, without expectation of direct recovery, deepens your relationship.

Investment in a commercial relationship

In a similar vein, Rory Sutherland observed that signalling one’s investment in a prospective relationship — going to irrecoverable personal expense to commence it — is a sensible opening gambit. You show you care about your client and the relationship by needlessly wasting time and money on them. It is a marker of your commitment; your intent to fidelity. It is a display of trust.

So, when you invite your wedding guests with a thick embossed card, perfumed envelope and glitter, rather than by to-all text message, you signal that you have gone to great trouble and expense to even invite your guests, making them feel valued and wanted and, even obliged to you, at least to respond, and even attend.

Is it the same for we legal eagles? Do our relationship-initiation rituals have this kind of “performative” aspect?

So, is the act of thrashing out an NDA some kind of show of commitment? I owe this idea to Marc Weisberger. To be sure, offering up 14-page screed for your client’s legal to tear to shreds is an unusual way of building trust — but is that how this perverse practice began? As a mating ritual?

It’s an odd mating ritual, to be sure.

If so, it has implications for our OneNDA project: if an NDA is really little more than pre-coital spadework then by simplifying it and allowing parties to just sign without investing in the entropic tedium of arguing “whether the discloser has to return or or just destroy confidential information” do we lose something?

Do we turn a careful, patient trust-building exercise into a clumsy back-seat fumble?

It is hard to believe that NDAs are such an immovable social feature of business. But perhaps we should look for a proxy all the same. It seems unintuitive, but perhaps the lesson is this: look for more productive ways of indicating commitment than a stupid NDA. Make other, more meaningful sacrifices: ones that aren’t such a drag.

Now that is is exactly what corporate entertainment is designed to do, of course — yet, but in rationalising it as a type of low-level corruption, as abstemious regulators tend to do these days (rightly!) does the high-modernist, ultra-rationalist view of business as “a complicated but fundamentally logical, deterministic machine” miss a trick?

See also