“Good Enough” and Contract Drafting

I’m coming late to the discussion of “good enough” in the context of legal services.

I’ve encountered several blog posts that come at this issue from different perspectives, including this one by Carolyn Elefant, this one by Ron Friedmann, and this one by Wayne Schiess.

Some of the recent discussion of this topic was prompted by Robert Capps’s August 2009 article in Wired magazine, “The Good Enough Revolution: When Cheap and Simple Is Just Fine.” Starting with a discussion of the Flip camera, which has triumphed over more expensive and feature-laden cameras, Capps argues that consumers are increasingly valuing convenience over quality:

So what happened? Well, in short, technology happened. The world has sped up, become more connected and a whole lot busier. As a result, what consumers want from the products and services they buy is fundamentally changing. We now favor flexibility over high fidelity, convenience over features, quick and dirty over slow and polished. Having it here and now is more important than having it perfect. These changes run so deep and wide, they’re actually altering what we mean when we describe a product as “high-quality.”

But to lump together the Flip camera and provision of legal services is to mix apples and oranges. When I’m pondering which video camera to purchase, I can readily acquire the information necessary for a cost-benefit analysis—information regarding price, video quality, ease of use, and so on. And I’m entirely able to do the cost-benefit analysis myself.

By contrast, when someone purchases legal services, those services don’t represent an end. Instead, they’re a means to an end, such as a favorable outcome to a dispute or successful consummation of a transaction. But achieving that outcome usually involves factors about which one has imperfect information or over which one has limited or no control. That adds uncertainty to any assumption that a given level of legal services is “good enough” to achieve the desired outcome. A client may well be ill-equipped to make that sort of judgement call. And when lawyers makes that call on behalf of a client, they may find themselves second-guessed if the result is unsatisfactory. So “good enough” is problematic in the context of legal services, as Bruce MacEwen noted in this recent post on Adam Smith, Esq.

But I have a bigger beef with “good enough” in the context of contract drafting. Here’s what Capps’s article has to say on that subject:

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.