|The psychology of legal relations
Special pleading /ˈspɛʃəl/ /ˈpliːdɪŋ/ (n.)
1. To cite something — usually, one’s job, person or justification for sorry existence — as an exception to a general principle with which one otherwise professes impassioned agreement, without explaining or justifying the exception.
2. A double standard, being a standard that is so good it is worth two normal standards.
“No, I totally agree we need to shorten our documents, cut out the complexity and the clutter, write them in plain English, and standardise. Modernisation is key.”
“Great, so how about this confidentiality agreement you sent me, that goes on for eight pages?”
“Ah. Yes, well, you see, that is a special case and [the client relationship is really important and they wouldn’t accept any change] and/or [we have been doing it this way for years] and/or [we cannot afford to weaken our stance] and/or [insert excuse here... ]”
The agency paradox: every agent believes in an equivalent double standard: viz., the key to its principal’s business transformation is to disintermediate everything but itself. An instance of, “I agree with you generally, but my particular case is special”.
This is hardly a controversy: you will find any practising lawyer to whom you make this observation in violent, general, agreement. So too, the Law Society, any regulatory body you care to mention, and many of the world’s legislators. The SEC has written an impassioned tract imploring prospectus writers to be brief. The European Commission won’t let you even market securities unless you are curt to the point of bluntness.
It is widely acknowledged that most legal repartee is overwrought; much of it hot air. Yet we find a curious dissonance: for however passionately a legal eagle may agree with this proposition in the abstract, it will be a different story in the particular. Especially where the particular in question is her own document.
“Ah, yes,” she will say. “Generally, one should be short and to the point, but this — well, this is a special case.”
The legal world, you see, is composed of special cases. That uniform, unbroken wall of entropic homogeneity that we know as legal “verbiage” is, if you stand close enough to it, composed of brilliant, unique, delicate, glistering particles. Every one is different. Every one is special. It is only their aggregated whole that is resembles an ocean of oatish blanditry. This we call a paradox. You know how the JC loves a paradox.
Now, everything in the legal eagle’s armoury is arranged around the analogy. This is stare decisis: the doctrine of precedent. The common lawyer proceeds exclusively by anecdote. She treats each case on its merit. Merit, in the eyes of our learned friend, lies only in the particular. She has no use for the general. She cannot comprehend it. The general — the emergent value of all contracts across the market, seen and unseen, is an abstraction beyond her possible care horizon. It simply isn’t meaningful.
Obviously, we can agree in general that legal documents should be shorter, clearer and better, but legal eagles don’t deal in generalities. They deal in particulars. Lots of beautiful, tiny, glimmering, bejeweled, special cases. Managing risk on a “portfolio” basis – which is surely what all financial services organisations must do – comes very hard to one trained in the common law.