Here’s how Wikipedia describes “learned helplessness”:
Learned helplessness is the condition of a human or animal that has learned to behave helplessly, failing to respond even though there are opportunities for it to help itself by avoiding unpleasant circumstances or by gaining positive rewards.
Sound familiar?
When it comes to contract language, I think of learned helplessness whenever I encounter people worrying about, for example, the distinction between termination and expiration. I use in contracts the formula This agreement terminates on [date], so I don’t have to bother with that unproductive distinction. (For more on that, see MSCD and this 2012 post.)
And I think of learned helplessness whenever someone tries to tell me, for example, what hold harmless means. Instead of rolling the dice by dabbling in obscure code phrases because you think that’s the way it has to be, make it clear what your indemnification provisions cover—Acme shall indemnify Widget against [fill in blank]. For more on that, see MSCD and this 2012 post.)
Regarding the contract process, I think of learned helplessness whenever I encounter a senior in-house lawyer or contracts person apparently unwilling or unable to address the manifest crappiness of the company’s templates. Do something! Do something! A cold-blooded cost-benefit analysis would be the place to start. (See my 2009 article Retooling Your Contract Process for the Downturn, here.)
Just as helplessness can be learned, it can also be unlearned.
