Lawyers and the Kitchen Sink

It is commonly believed – and correctly – that lawyers are risk averse. Less commonly understood is the impact that this aversion has on contracts.

It is commonly believed – and correctly – that lawyers are risk averse. Less commonly understood is the impact that this aversion has on contracts.

But why are lawyers more risk-averse than their non-legal peers? Is it something in their DNA that encourages them to become lawyers, or is it something in their training? For Anglo-Saxon lawyers, the training has a large part to play.

Anglo-Saxon lawyers are brought up on the common law system, and the common law is based on case law. But what is a legal case (in a business context) except a deal that went wrong?And, if it ended up in court and law students are reading about it, not just wrong, but exceptionally, anomalously, wrong.

How anomalous? Well, add up in your head how many business-related court cases you have been involved in for every ten years of your working life.

If the number is greater than 1 case for every 500 years of working life (Yes, add your numbers together with some colleague’s numbers) I’d be amazed.

So pity the poor lawyer who, at a very impressionable age, is for 3 years force-fed a diet of the anomalous and ends up believing that the anomalous represents the real world.

Having been trained to be risk-averse, how does this risk-aversion manifest itself in the world of contracts? Let me introduce you to the concept of kitchen-sinking. Kitchen-sinking is when a lawyer, in order to avoid having to make a decision about what’s relevant for a specific contract, lobs in every clause he can think of including the kitchen sink.

Why lob in everything instead of making a decision about what’s relevant? Because making the decision about what’s relevant means making a judgement call, and if you make a judgment call, you might get it wrong.

And if you get it wrong, you might get sued.

So, kitchen-sink it and avoid the risk. (Note that this applies primarily to law firm lawyers. Inhouse lawyers may worry about getting fired, but they don’t worry about getting sued by their employers).

But ask yourself this. Whose interests does kitchen-sinking really serve? Whose risks are being mitigated? Is it the risks borne by the client, or is it the risks borne by the client’s lawyer?

And if you get it wrong, you might get sued. So, kitchen-sink it and avoid the risk.