How Malcolm Gladwell’s Thoughts on Inertia Relate to Contract Drafting

At the suggestion of @saBEERmetrics I listened to episode 590 (“Choosing Wrong”) of This American Life, the weekly public radio show. I’m glad I did, because it’s about inertia, and in a couple of respects it’s relevant to what I do.

What Stops You from Doing What Makes Sense

In act one of the episode, Malcolm Gladwell discusses the notion of beliefs and thresholds. Beliefs are internal, but thresholds are external. Gladwell says that thresholds are “about peer pressure. Your threshold is the number of people who have to do something before you join in.” Gladwell’s segment is about how your threshold can stop you doing what makes sense.

In one part of his segment, Gladwell discusses how American football teams would win more games if in the annual draft they traded away their first-round picks and stockpiled players in the second and third rounds. They’d also win more games if they didn’t punt the ball away on fourth down. But football teams ignore that reality. The explanation that Gladwell offers for that could be used to explain why law firms stick with dysfunctional traditional contract language. So here it is, as adjusted by me:

But that can’t be right. You don’t get to their level by being dumb. Surely this is about thresholds.

[BigLaw lawyers have] all done things a certain way for a long time.

And doing things that way has made them a lot of money. They have a high threshold. These are a bunch of grandmothers.

The only way any of them is going to change their behavior is if some radical goes first. And there are no radical [lawyers] in [BigLaw].

On hearing this part of the segment, I thought about the BigLaw lawyers who have told me, after hearing about my book The Structure of M&A Contracts, that it wasn’t in their interest to break from the pack when it comes to how M&A contracts are worded.

But two caveats: First, contract drafting is inherently precedent-driven, so it’s more prone to inertia than the practices of American football teams.

And second, inertia is so pervasive that it can’t all be explained by peer pressure. I have in mind in particular inertia in medicine (see this November 2015 post) and even in cooking (see this December 2015 post).

On Being a Perfectionist

In his segment Gladwell talks about how hardly any basketball players do free throws underarm. Wilt Chamberlain, a notoriously bad free-throw shooter, went underarm for one game and did phenomenally well. But even though he knew he was making a mistake, he declined to continue shooting underarm; he didn’t want to look like a sissy.

The leading advocate of underarm shooting is Rick Barry, an NBA Hall of Famer. He finds it inconceivable that players refuse to take advantage of the benefits of underarm shooting. Gladwell says the following about Barry:

The kind of person who would let bad things be said about him in his own autobiography is the kind of person who would shoot a free throw that other people think looks ridiculous. I spent an afternoon with Barry at his condo.

And I’d read all that stuff about him—half the players disliked him, the other half hated him. And I kind of braced myself before I met him. But I liked him.

Or maybe it makes more sense to say, that I really admired him. Because I finally understood what someone like Rick Barry stands for. It’s perfectionism.

And what is a perfectionist? Someone who puts the responsibility of mastering the task at hand ahead of all social considerations, who would rather be right than liked. And how can you be good at something complex, how can you reach your potential if you don’t have a little bit of that inside you?

I know we’ve really only been talking about basketball, which is just a game in the end. But the lesson here is much bigger than that. It takes courage to be good, social courage, to be honest with yourself, to do things the right way.

That resonated with yours truly. I reckon I’m more easygoing than Rick Barry. For one thing, I’m not in the habit of pushing my wife in the pool, as Barry apparently was. And more generally, you can’t spend ten years doing seminars for thousands of people if you’re not at least moderately engaging.

But being right is my highest priority. I’ll tell you if I think you’re mistaken. If you’re touting your wares in the marketplace of ideas, I’ll explain in detail how your ideas fall short. And if you’re a public figure, I might permit myself to be acerbic—whatever helps get my message over. As I mention in this February 2016 post channeling Beyoncé, if you face entrenched opposition, you have to fight for your ideas.

A few years ago someone who gives litigation-writing seminars asked me why I had such strong opinions about my subject. Instead of telling people they’re wrong, why not say something like, “Sure, that’s appropriate, but here’s another way”? That approach might be fine for writing briefs and the like, but not for contract drafting: the prose of contracts is too limited and stylized, and too much is at stake.

As far as I’m concerned, no one has any reason to complain as long as I’m not being snide or mean. I know there are people out there who resent my being candid and don’t like being challenged, but I have a job to do. Don’t expect me to pussyfoot.

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.