Template:M intro design no-one reads this
Herculio: Ay, drafted, is ’t;
But to my mind, though eagle-tuned
And to the manner born, this Condition is
More honour’d in the breach than the performance.
This heavy-handed sheaf of windy guff
Doth impose a weighty tax upon our distant aspirations;
These ticket-clippers with their malty turns of phrase
Soil our accord with oily additions. Who wouldst draw
Not the heaving strokes of palpitating consensus
But this wicker frame of ghoulish aspect
Post-dated with the odds of shouty misadventure?
Everyone has a contract until they get punched in the mouth
- —With apologies to Mike Tyson
Given as he is to making social science up on the hoof, JC is working on a theory that when we buy the services of a commercial law firm — and, specifically, when we buy them to make contracts for us — we are not buying words, nor even the underlying legal content that they carry, but a more general, beatific peace of mind that comes from paying serious people to do sober things for us.
We don’t need to understand the words, because our agents have done this for us. By their very existence, our agents intimate to us that everything will be okay.
This illusion lasts as long as no one subsequently casts an eye across the documents. The moment anyone does — and, look: no one reads legal agreements for the hell of it, so assume she will be paid to pick holes in them — it tartly vanishes.
Crucial operators — words like “not” — will, without explanation, be absent when needed or present when not. Square brackets, blobs and placeholders will impotently stand in for pivotal passages and vital variables. Forms you now dearly wish were signed, dated and legibly filled-out won’t be. Critical terms will be subject to non-existent subclauses. Carelessly lobbed boilerplate will ram-raid painstakingly crafted rights.[1]
And that is when the parties have kept their original deal in mind. But life is rarely as mundane as that: invariably, since they bade their legal teams a fond farewell fifteen years ago, neither side has paid these terms the blindest bit of attention. They may not now know where they are. If enough time has passed, they may not even know that there are any such terms.
Why would they? However hotly they were once contested, no one since has insisted on, performed, or cared less about these covenants. No-one who was present at their ordination remains: the last was made redundant in 2008. By their consensual behaviour, the parties have systematically contradicted these key tenets for years.
None of this matters unless the relationship hits the skids. Suddenly, each side seeks legal advice. Their new counsel comb the contract, poring over minor details, hunting for clinchers in a babbling, confused, inchoate hellscape of random words that it is now impossible, except by coincidence, to map to any coherent course of behaviour — let alone the partiesʼ actual dealings with each other.
This is because the parties delegated this performative act — you know, “doing the legals” — to lab coated specialists with the barest grasp of the commercials then and who, not having been involved since, have none now — who hardly can be blamed for failing to predict how the relationship would develop in between times.
Commissioning legal contracts in this way is to pay good money to buy (or, for all you know, sell) a lucky dip of random puts and calls. What you pull out of the barrel on signing day is then buried in peat, only to be revealed, if at all, a long time later upon the eve of catastrophe.
Your best hope, therefore, is that no such catastrophe visits, your relationship continues to flourish and no one ever looks at the contract again. Which begs the question: what are you paying lawyers for?
The ugly secret of professional practice is that much work product can be like that because, for the most part, it doesnʼt matter if it is not. A vanishingly small percentage of contracts are ever litigated. This is not because they are “good contracts” but because they describe good relationships: their parties donʼt fall out. Almost all contracts expire untested. If you have to read the contract, you have already lost.
To its principals, the contract preparation process is a sombre mystery. They are not meant to understand the actual words, and may cause themselves trouble if they try. It is better just to take generalised comfort that there are a lot of words, they seem legally sonorous, they are strung together in carefully constructed, if forbiddingly unbroken, slabs and the battalions of advisors who have gathered at the banquet on either side to pick them over will, by the time the busboys are serving coffee and warming up the disco, have maximised their chargeables made peace with the legal content.
All that skirmishing and sniping must, after all, do something — mustnʼt it? It must advance what the respective advisors take to be their clientsʼ best ainterests, however imperfectly they understand them?
In the same way that trenches and battle fronts thrust and counterthrust, the red lines in a negotiation move back and forth. Since the people who wrangle these textual monoliths are part of an educated elite, a kind of emergent wisdom settles upon the project. Its net effect — even if we cannot fathom how or why — will be a comforting conviction that everything will generally be okay.
But what if this assumption was — wrong?
To be clear, the question is not merely “do commercial principals — should I say “agents” — hire law firms to cover their own backsides?”
Of course they do. Everyone knows that.
It is more to say that the “attorney work product”, when you do read it, is dismal. It is not designed to be read. No one reads a bond prospectus.
On this view, legal writing is designed to just occupy space. It is like that expanding polystyrene stuff they spray inside internal partition walls for soundproofing.
There is just no craft, no elegance, no design, no architectural panache, no basic economy. It is just this tortured, brutalised, monstrous torrent of dreck, from end to end.
These people are meant to be wizards of language, after all. They should deliver the most beautiful, clear, elegant product.
That they don’t is a kind of final triumph of form over substance.
- ↑ Our old friends the no oral modification clause and the Contracts (Rights of Third Parties) Act 1999 exclusion are often causes for deep regret.