Another Source of Inertia in Contract Drafting: “We Don’t Give a ****”

You don’t have to be a physicist to experience the force of gravity. Similarly, I’m only a casual student of inertia, but I’ve long grappled with it.

Casey Flaherty is a serious observer of inertia. I’ve returned several times to the following in this post:

My most obvious error has been predicting the pace of change. While there is sufficient demand for change to keep me and a cadre of fellow travelers occupied … , the overall pace of change keeps being far slower than I imagine even when I update my priors to incorporate the observation that the pace of change is far slower than I imagine.

This should not surprise me.

Massive passive resistance. Agency dilemmas. Institutional inertia. Status quo bias. Loss aversion. Endowment effects. Lack of urgency. KAP gaps. The Chasm. System justification. Institutional isomorphism. Reams of academic literature explain the Planckian notion that progress does not occur when its opponents see the light but only when they lose their power to oppose—that is, funeral by funeral. I’ve not only read my Rogers, I’ve read Bill Henderson’s masterful series applying the Rogers Diffusion Curve to innovation, or lack thereof, in the legal ecosystem.

I’m inclined to add to Casey’s list another source of inertia. It’s encapsulated in my mind by the phrase We don’t give a ****. (Fill in the blank as you see fit!) Allow me to explain.

Recently I saw online an extract from a contract drafted by a global company. It exhibited traditional contract drafting (albeit a slightly modernized version), in that the prose was both clumsy and unhelpfully legalistic. This extract wasn’t an exception: it was broadly comparable with another contract drafted by that company that I had had occasion to examine.

The company in question has the resources to do things right. And they have at least a passing acquaintance with what “right” looks like. But they’re not interested. In my one interaction with them, they made it clear that they didn’t wish to hear about shortcomings in their contracts.

Why? Here’s an all-purpose explanation Casey offers in this post:

Inside counsel are really busy doing work that is mission critical to the enterprises they serve. They are overburdened and do not have the time or other resources to pursue transformative change within or outside the law department.

In this case, I don’t think that captures the dynamic, and neither do any of the more nuanced explanations. I simply concluded that the company in question doesn’t give a ****.

Studies of inertia tend to seek to explain why rational economic actors opt to stick with suboptimal results. But perhaps we’re not dealing with rational economic actors. Maybe we’re dealing with people for whom the suboptimal is acceptable because achieving the optimal is just too much of a drag.

I’m hard-wired to give a ****. My family refers to me as “the society policeman.” Waste and selfishness in the public sphere makes me uncomfortable. When I think of, say, what it took to land on the moon, I think, They gave a ****! When I think of the Swiss train system, I think, They give a ****!

Currently the zeitgeist seems to contain a big helping of We don’t give a ****. A random example: whenever I return from my travels, take an AirTrain from JFK, and find myself at Jamaica Station, I survey the grubbiness and find myself thinking, We don’t give a ****.

When it comes to my corner of the contract-drafting world, I like to assume that people would prefer to avoid wasting time and money, hurting their competitiveness, and assuming unnecessary risk, so like Casey I find a bunch of explanations for continued dysfunction. But let’s be realistic—it’s inevitable that some proportion of the inertia that afflicts contract drafting is attributable to We don’t give a ****.

Tackling dysfunction requires putting yourself out for the common good. It requires challenging the status quo. If you’re mainly concerned with doing the minimum and not rocking the boat, you’ll stay clear of tackling dysfunction, and you’ll probably do just fine.

I’m not inclined to get hung up on this. If I thought the don’t-give-a-**** contingent had the upper hand throughout the industry, I’d throw in the towel. Instead, I’m constantly reminded of the people and organizations out there trying to do better. I’ll continue to do my thing for those who do give a ****.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

10 thoughts on “Another Source of Inertia in Contract Drafting: “We Don’t Give a ****””

  1. I do not buy into Casey’s argument. In my experience, deal making is actually slowed down by horrific third-party templates, clumsy language, and traditional long-form agreements. One party’s claim of inertia is another’s canvas for redlines.

  2. I struggle with this (internally) at times. I don’t WANT to point out obvious flaws within a client’s form contract, but if you’re going to define my company as “Consultant” and then have various clauses that use “Subcontractor,” “Vendor,” and “Supplier,” then I’m going to need to correct it. What’s unfortunate is these aren’t positional negotiating chips, but rather edits to make a sloppy document legally sufficient. And I shouldn’t be the one providing legal drafting services for your form contract.

  3. Here’s another explanatory concept to add to the list: “Satisficing.” The Nobel prize winning economist, Herbert Simon, coined the term in his landmark book, “Administrative Behavior,” as an alternative model of economic rationality. His contention is that rational economic actors faced with complex issues do not seek to optimize outcomes, they seek to adopt satisfactory outcomes based on the marginal costs/benefits of achieving the optimal (classically “rational”) outcome. Regarding the issue of innovation adoption and crossing the chasm in law firms, I have written about this topic in some depth starting here:

      • Yes, satisficing is pretty much the same thing as “good enough”. It is also referred to in the literature as “bounded rationality,” but Simon generally opted to use his coined term. Tying things back to your current post, “satisficing” might be considered “don’t give a ****’s” more cheerful and positive-thinking cousin. I’d say it’s a better way of characterizing the behavior of the company you referenced. Satisficing is a conscious decision to accept imperfection or at least to cut off scope and effort even in the face of known/achievable improvements.

        It’s been many, many years since I read Administrative Behavior, but it’s a delightful, insightful and accessible book, one that presages the more recent fascination with behavioral economics. Check it out.

        • As I explain in my post, “good enough” doesn’t make sense applied to contract drafting. So maybe it is equivalent to the don’t-give-a-**** standard: at some point, applying a misguided rationalization is indistiguishable from negligence.

  4. Pride, the refusal by lawyers, and business, to admit that there is anything wrong with their drafting is another obstacle. That and the outdated concept that the role of in-house counsel is limited to building walls to ‘protect’ the company’s interest. This leads to over-engineered, clumsy drafting… and less legal certainty. The best approach to tackle the pride is one-agreement-at-a-time, to demonstrate the advantages of clearer writing. My first forays have been successful with business. Now for the lawyers!

  5. 1. Inadequate deal specificity can be an intentional ploy, enabling later “blame it on the lawyers,” as was explicitly revealed in the trove of emails leaked when global political risk consultancy Stratfor got hacked.

    (And compare “The Artful Use of Intentional Ambiguity in Document Drafting,” 2/16/12 at .

    2. For humorous musical prose suggesting that “good enough” can be followed by long-term but acceptable hassling (like abrasive ongoing negotiations with a regular counterparty? or litigation “clean-up” after inadequately conceived and documented transactions?), music fans may enjoy the bad-but-continuing-romance tongue-in-cheek song “/I Don’t Give A Shit/,” well performed and video’d at, by the regionally famous and beloved band Shinyribs.

  6. As an inside counsel, I’m frequently very busy of doing the mission-critical work of trying to deal with the consequences of substandard drafting in the contracts and other documents that I’ve inherited.


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