Molesworth self-adjusting thank-you letter: Difference between revisions

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Molesworth self-adjusting thank-you letter (view source)

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Here’s the idea — free to you, but give the [[JC]] a knowing wink in your [[Awards|acceptance speech]], okay?  
Here’s the idea — free to you, but give the [[JC]] a knowing wink in your [[Awards|acceptance speech]], okay?  


Take a common, but unstandardised [[contract]], that [[legal eagle]]s are in the habit of sending each other on the premise that it manages a risk that can, and really ought to, go without saying. In [[Simmons]]’ case it is the [[terms of business]]; let us take that [[iatrogenic]] staple the [[confidentiality agreement]].
Take a [[Tedious|common]], but unstandardised, [[contract]] — ideally one that [[legal eagle]]s are in the habit of sending each other but which addresses a risk proposition that can, and really ought to, go without saying. In [[Simmons]]’ case, it is the [[terms of business]]; but let us take that [[iatrogenic]] staple, the [[confidentiality agreement]].


Let us say you are about to embark on a “[[project]]” with one of your clients. The project is simple, workaday, its [[purpose]] easily articulated, and it carries an appreciable, but containable, risk of harm — mainly embarrassment, if we are honest<ref>The notion that much of what passes between the legal departments of modern financial institutions is clever, much less [[proprietary]] or sensitive, is one of the great [[canard|canards]] of our age.</ref> — should information passing between the participants in pursuit of it be treated without care.  
Let’s say you are about to embark on a “[[project]]” with your client. The project is a simple, workaday thing; its [[purpose]], though easily articulated, carries an appreciable, but containable, risk of harm — mainly embarrassment, if we are honest<ref>The notion that much of what passes between the legal departments of modern financial institutions is clever, much less [[proprietary]] or sensitive, is one of the great [[canard|canards]] of our age.</ref> — should you not treat the information your client sends you with suitable care.  


Your client’s [[legal department]] sends you a [[confidentiality agreement]]. The [[evolution]] of [[legal technology]] being what it is, you would expect this to be a standardised short form, addressing the four of five points a confi must, you can nod it through so you and your counterpart’s legal departments can be on your respective ways to get on with the far more pressing matters of legal risk which face us in these modern times.
Your client’s [[legal department]], thus, sends you a [[confidentiality agreement]]. The [[evolution]] of [[legal technology]] being what it is, you would expect this to be a standard, short, utilitarian communiqué, rather like a [[telex]]: it will succinctly address the four of five points an NDA must, and you can nod it through on a cursory glance, and thereafter you and your counterpart’s legal departments can be on your respective ways, allowing the business folk to get on with whatever unseemly business people of commerce do, in these straitened times.


It won’t be, of course: it will be a fantastical, paranoid, weaponising tract. It will comprise seven pages of closely-typed 10 point text, which will purport to commit you to all kinds of [[exclusivity|exclusivities]], [[indemnities]], and open-ended [[covenant]]s to mount legal defences to see off polite requests for regulators and the like.
It won’t be anything of the kind, of course: it will be a fantastical, paranoid, weaponising tract. It will comprise fifteen pages of closely-typed 10 point text, by which your client will purport to commit you to all kinds of [[exclusivity|exclusivities]], [[indemnities]], and open-ended [[covenant]]s to mount legal defences to see off polite requests for regulators and the like.


This will oblige you to engage in close combat. You will have to sift through the text looking for buried innuendoes. You will mark it up and send it back, and settle in for a 2 two week pitched battle where you and your client’s legal shell each other with increasingly improbable hypotheticals justifying the stances you want, respectively, to sustain or resist, in the document.
This will oblige ''your'' legal eagle to engage in close combat with ''theirs''.<ref>This is known in the trade as a “[[dog-fight]]”.</ref> You will have to sift through the text looking for buried innuendoes. You will mark it up and send it back, and settle in for a 2 two week pitched battle where you and your client’s legal shell each other with increasingly improbable hypotheticals justifying the stances you want, respectively, to sustain or resist, before your business people can get busy with it.


This helps no-one, of course, although it may help quell the inner road-rage that motivates [[Negotiator|those who seek out arguments for a living]].<ref>You, my young eaglet, just such a person, so do not scoff.</ref> All the same this scandalous inefficiency has attracted the attention of the [[middle management]] layer. They seek ways of making it better. Being modern, [[Thought leader|thought-leader]] types they see a blindingly obvious way of doing this: ''[[reg tech]]''. If this process were not enough of a [[Rube Goldberg machine]] already, then engaging a [[machine learning]] to [[intermediation|intermediate]] is hardly going to help. But there we have it.
This helps no-one, of course, although it may help quell the inner road-rage that motivates [[Negotiator|those who seek out arguments for a living]].<ref>You, my young eaglet, are just such a person, so do not scoff.</ref>  


Now for many years this was a fine state of affairs, although it does tend to make sales people —exitable at the best of times — a bit jumpy. But alas, this scandalous inefficiency finally attracted the attention of the [[middle management]] layer. Middle managers know little of any value about anything, as we know — that is why they are middle managers — but the merits of a humble confidentiality agreement are basic enough for even a simpleton to grasp, and the [[NDA]] has become something of a ''bête noire'', or a ''cause célèbre'', depending on how you look at it, for the [[chief operating office]]. In the NDA it apprehends ''something it can fix''.
Being modern, [[Thought leader|thought-leader]] types they see a blindingly obvious way of doing this: ''[[reg tech]]''. Now you and I might think, differently: if the negotiation process was a [[Rube Goldberg machine]] already, then engaging [[machine learning]] and [[natural language processing]] to [[intermediation|intermediate]] is hardly going to help. But there we have it. No-one ''asked'' us.
So I’m asking us. And answering.
===The JC’s self-adjusting confi agreement thank-you letter===
===The JC’s self-adjusting confi agreement thank-you letter===
But if we were to think of this from another perspective, we can get to a simpler answer.  Start with modern theology. Apply the words of [[pragmatist’s prayer|serenity’s prayer]], and find the wisdom to know what you ''can'' change, what you ''cannot'', and go from there.
But if we were to think of this from another perspective, we can get to a simpler answer.  Start with modern theology. Apply the words of [[pragmatist’s prayer|serenity’s prayer]], and find the wisdom to know what you ''can'' change, what you ''cannot'', and go from there.
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