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.