Should You Include a Duck in Your Draft Contract?

Over dinner recently, a transactional lawyer told me he makes a point of including a duck in each draft he sends to the other side. But he didn’t actually use the word “duck.” That’s my word, thanks to the great Alex Hamilton, who pointed me to this post on the Coding Horror blog, which includes the following definition of duck:

A feature added for no other reason than to draw management attention and be removed, thus avoiding unnecessary changes in other aspects of the product.

The post goes on as follows:

This started as a piece of Interplay corporate lore. It was well known that producers (a game industry position, roughly equivalent to PMs) had to make a change to everything that was done. The assumption was that subconsciously they felt that if they didn’t, they weren’t adding value.

The artist working on the queen animations for Battle Chess was aware of this tendency, and came up with an innovative solution. He did the animations for the queen the way that he felt would be best, with one addition: he gave the queen a pet duck. He animated this duck through all of the queen’s animations, had it flapping around the corners. He also took great care to make sure that it never overlapped the “actual” animation.

Eventually, it came time for the producer to review the animation set for the queen. The producer sat down and watched all of the animations. When they were done, he turned to the artist and said, “that looks great. Just one thing – get rid of the duck.”

My dinner companion had exactly this effect in mind. He creates what he thinks is an even-handed draft, then he adds a provision that clearly overreaches. His theory is that the other side spots that provision, asks him to remove it or tone it down, and otherwise leaves the draft as is. In other words, the other side asks him to get rid of the duck. Removing the duck makes the lawyer for the other side feel like they’ve done something useful. But for presence of the duck, they might create mischief by changing something else—something that makes sense—just so they can show their client that they had added value.

My dinner companion obviously thinks this strategy works for him often enough to make it worthwhile for him to stick with it. I don’t do deals, so I have no experience with this issue. But by temperament, I’m inclined not to play games. And this approach could conceivably be counterproductive: once the other side makes a change, they might find it easier to make further changes.

What do you think?

(Photo by Joshua Coleman on Unsplash.)

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.