I’ve been thinking about cognitive dissonance. Here’s some of what Wikipedia has to say on the subject:
The theory of cognitive dissonance in social psychology proposes that people have a motivational drive to reduce dissonance by altering existing cognitions, adding new ones to create a consistent belief system, or alternatively by reducing the importance of any one of the dissonant elements. Cognitive dissonance is the distressing mental state that people feel when they “find themselves doing things that don’t fit with what they know, or having opinions that do not fit with other opinions they hold.” A key assumption is that people want their expectations to meet reality, creating a sense of equilibrium. Likewise, another assumption is that a person will avoid situations or information sources that give rise to feelings of uneasiness, or dissonance.
Cognitive dissonance theory explains human behavior by positing that people have a bias to seek consonance between their expectations and reality. According to Festinger, people engage in a process he termed “dissonance reduction,” which can be achieved in one of three ways: lowering the importance of one of the discordant factors, adding consonant elements, or changing one of the dissonant factors. This bias sheds light on otherwise puzzling, irrational, and even destructive behavior.
Here’s why I’ve been thinking about cognitive dissonance:
I’m able to keep doing what I do because people find my stuff worthwhile. But not all people. I recall one in-house “Drafting Clearer Contracts” seminar I gave a few years ago at a company. A couple of participants ended up seriously unhappy; in their feedback, they suggested, in strident terms, that I was dumbing stuff down, that I was doling out grammar lessons rather than focusing on what really matters. The implication was, Who does this Adams think he is!
I also recall a “Drafting Clearer Contracts” seminar I gave at a law firm. I didn’t get any feedback, but apparently a partner didn’t like what I had to say, as the silence from my contact at that firm was deafening.
I find this sort of reaction interesting rather than threatening, as my track record shows that it doesn’t reflect the value of what I do. Instead, I suggest that it’s a product of the cognitive dissonance that arises when someone who is steeped in the dysfunction of traditional contract drafting encounters something that challenges the traditional order. Because the traditional order and my views can’t coexist, something has to give. If the alternative is to overhaul your approach to contract language, some might find it simpler to reject outright what I have to say, with at best only a flimsy pretext.
I don’t get this sort of response in my public seminars: anyone willing to take a day or two off work to attend one of my public seminars will necessarily be open to my ideas. The corollary is that there might be plenty of people who shut out my ideas and will react accordingly when I happen to show up on their turf. For all I know, they might represent a silent majority.
I don’t draw any grand conclusions from this, but it does help me understand the visceral reaction that my stuff very occasionally provokes.
4 thoughts on “Cognitive Dissonance and Contract Drafting”
As long as you’re in a reflective mood, you might discuss the relation between “clear” and “modern” contract language. If a particular instance of “old-fashioned” or “traditional” contract language is clear, is it okay?
When I refer to “traditional” contract drafting, I’m referring to an entire approach, rather than individual usages. As regards individual usages, all I care about is whether they’re clear. Of those that are unclear, the best-known ones are those that have been around the longest—in other words, those that are traditional.
If the only people making reference to contracts or relying on them for guidance in commercial relationships were lawyers, the “dumbing down” concept might have a grain of truth. The value in what you provide, Ken, is that you strive towards clarity and understanding, and provoke healthy discussion.
Thank you. But the “dumbing down” notion has no validity, whatever the context. If traditional contract language were somehow magically clear to the lawyers reading contracts, do you think that we’d have all the confused-contract-language litigation that we do?