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}}A counterfactual proposition which ought to be put in service more often than it is, in defence of simple language and resistance of [[flannel]]. | }}A counterfactual proposition which ought to be put in service more often than it is, in defence of simple language and resistance of [[flannel]]. | ||
When presented with such pettifoggery, resist it thus: | When presented with such pettifoggery, resist it thus: | ||
This is rather like reacting, as schoolboys of the [[JC]]’s generation did, when presented with a | {{quote|“Are you saying that a court it would seriously entertain that argument?”}} | ||
In otherwords, ''[[good luck in court with that one]]''. | |||
This is rather like reacting, as schoolboys of the [[JC]]’s generation did, when presented with a preposterous playground boast — you know, the “my dad was in Colditz during the war, and he escaped, in a bi-plane made out of leberwürste stolen from the refectory” sort of thing — by theatrically stroking one’s chin and cackling, “Oh, right, ''Jimmy Hill''.” | |||
Friends, we do not do the “Jimmy Hill chin-stroke” nearly enough any more. | Friends, we do not do the “Jimmy Hill chin-stroke” nearly enough any more. | ||
The idea is to move the debate from tedious hypotheticals about conceptual risks and linguistic | The idea is to move the debate from [[tedious]] hypotheticals about conceptual risks and theoretical linguistic imprecisions, to ''addressing practical risks of significant confusion that result in loss''. | ||
A lawyer’s mandate is made of wood, metal, leather and earth. ''It is not of the [[Platonic ideal|spheres]]''. We are not theorists of perfect exactitude, but ''enablers of commerce''. We come back, as usual, to our old friend [[Voltaire’s maxim|Voltaire]]: ''[[Perfection is the enemy of good enough]]''. | |||
But yonder looms the long shadow of the [[agency problem]]: [[Legal eagle]]s are | But, but, but: this is ''so'' easy to say. Over yonder looms the long shadow of the [[agency problem]]: [[Legal eagle]]s are creative, yes, but the forensic imagination bounds ''toward'' the paranoid, ''away from'' practical common sense at every opportunity. | ||
[[Legal eagles]] side not with Voltaire, but [[Descartes]]: ''[[j’édite donc je suis]]'': “[[I mark up, therefore I am]]”. | |||
Every legal [[negotiator]] will, regularly, find herself engaged in a fruitless argument about some hypothetical catastrophe which ''might'' arise ''if'' a counterpart should wilfully misconstrue the plain but general language of a contract. The difficulty of resisting this sort of passive-aggressive logic is articulated in the [[anal paradox]], since fully validated in [[Büchstein]]’s [[ninth law of worker entropy]]. | |||
{{quote| | {{quote| | ||
“But what if I want to do | “But what if I want to do ''[here, insert any harmless activity, contiguous with the plain intent of the commercial bargain, and of no practical consequence to the other party]''?” <br> | ||
“It doesn’t say you can’t.” <br> | “It doesn’t say you can’t.” <br> | ||
“But it doesn’t say I ''can'', either.” <br> | “But it doesn’t say I ''can'', either.” <br> | ||
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By way of example from a [[confidentiality agreement]]: one might expect the following pedantic addition to a simple definition: ''“'''Confidential information'''” means all information relating to to a party {{insert|or otherwise relating to that party or its affairs}}...'' | By way of example from a [[confidentiality agreement]]: one might expect the following pedantic addition to a simple definition: ''“'''Confidential information'''” means all information relating to to a party {{insert|or otherwise relating to that party or its affairs}}...'' | ||
Now to | Now to a [[prose stylist]] — indeed, to all those interested in the efficient conduct of business from ''any'' perspective whatever their feeling for literature — that addition is an abomination. But it precipitates our old friend, the [[anal paradox]], for arguing to remove it again, seeing as it does no harm, is an even ''greater'' waste of time and resources. | ||
So, these curlicues | So, these curlicues accrete and, through time, one’s templates silt up with pedantic, fussy language, [[Organisational scar tissue|organisational scar tissue]], the fossil record of prior calamities, work-arounds and ungainly compromises reached to accommodate uncomprehending, truculent risk managers who have long since moved on. So, the templates become inscrutable, unknowable — literally ''ineffable'': they acquire some kind of mystical reverence, because no-one has the mandate, the time the energy ''nor the interest'' to question them. Their very baroqueness gives the [[Rent-seeker|rent-seeking military-industrial complex]] something to do. | ||
This allows plain language windbags, like yours truly, to rail freely about the enormity of classic legal drafting, knowing it to be an entertaining way of blowing off steam about a problem that cannot be solved. For it is ''always'' worth defending textual elegance, not just in the name of handsome prose — though surely that is reason enough — but in defence of simplicity, adaptability, clarity, and operability. | |||
''Think global, act local.'' | ''Think global, act local.'' | ||
This is where ''you'', my crusading [[legal eagle]], can make a ''difference''. ''Don’t stand for it. | This is where ''you'', my crusading [[legal eagle]], can make a ''difference''. ''Don’t stand for it.'' | ||
'' | |||
Besides, acquiring a reputation for anti-pedantry brings its own rewards: your counterparts will learn to fear you. The hollow pleasure that comes from inserting | Besides, acquiring a reputation for anti-pedantry brings its own rewards: your counterparts will learn to fear you.They will avoid engagement. They may start to heal themselves, finding that to be a path of less resistance. The hollow pleasure that comes from inserting ''[[foam]]'' into your manuscript will not be worth the bother, as you will be certain to to spend [[tedious]] hours arguing for its removal again. M | ||
The best argument is the fictional session before the [[Queen’s Bench]] at which one might litigate this hypothetical point. And here we turn to our old friend {{jerrold}} to illustrate. | ake it known that there will be no easy [[in your face|swept-back wing and knee slide]] moments when you are on the other side of the table. Those who get to know you will tire of trying. The best argument is the fictional session before the [[Queen’s Bench]] at which one might litigate this hypothetical point. And here we turn to our old friend {{jerrold}} to illustrate. | ||
{{Court scene|II|v|straightens his papers and looks up brightly, only for his face to darken at what he sees|arises sclerotically, fidgets unsubtly with his undercarriage and addresses the court with a pained expression||||||}} | {{subtable|{{Court scene|II|v|straightens his papers and looks up brightly, only for his face to darken at what he sees|arises sclerotically, fidgets unsubtly with his undercarriage and addresses the court with a pained expression||||||}} | ||
:'''{{cmr}}''': Sir Jerrold. This one seems open and shut, even for you? “Confidential information means all information relating to a party.” Couldn't be much clearer than that, could it? | :'''{{cmr}}''': Sir Jerrold. This one seems open and shut, even for you? “Confidential information means all information relating to a party.” Couldn't be much clearer than that, could it? | ||
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:'''{{cmr}}''': You wish the ground would open up and swallow you? | :'''{{cmr}}''': You wish the ground would open up and swallow you? | ||
:'''{{jbm}}''': I do, m’lud. | :'''{{jbm}}''': I do, m’lud. | ||
:'''{{cmr}}''': I shall make an order to that effect, Sir Jerrold. | :'''{{cmr}}''': I shall make an order to that effect, Sir Jerrold.}} | ||
{{Sa}} | {{Sa}} | ||
*[[Anal paradox]] | *[[Anal paradox]] | ||
*[[Agency problem]] | *[[Agency problem]] | ||
{{ref}} |