Tales from the Crypt

I’ve written previously how aversion to risk is a big part of a lawyer’s make up. One manifestation of this is an unquestioning acceptance of practices which are long past their sell-by date. Or to put it more forcibly: lawyers have a herd mentality. They do what other lawyers do because there’s safety in numbers. If everyone else is doing it, it must be safe.

Here are two really prosaic – but revealing – examples of this kind of risk aversion at work. What each illustrates is how, even when the original reason behind a practice has disappeared, lawyers like to continue its use for fear of doing something different and – somehow – getting it wrong.

All Caps

If you have dealt with US contracts, you will have noticed that the clauses dealing with limitations of liability are invariably in capital letters. Why? Because the US Uniform Commercial Code requires such clauses to be “conspicuous”.

When contracts were produced on a typewriter, the only way to make the clauses conspicuous was to put the clause in capital letters. But the first Apple computer went on sale in 1976, and since that time there’s been a hundred different ways to make those clauses conspicuous. You can bold them, underline them, put them in a larger font, put them in a different colour. You can put them in a box with a frilly border with arrows pointing at the box. You might even (following Elle Woods in Legally Blonde) give them a distinctive scent.

To cap it all, research shows that people find it harder to absorb information when a sentence is set out in capital letters. Even US judges aren’t keen on them: “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”

Has any of this affected how US lawyers produce contracts? Nope, the limitation of liability clauses are still all caps. There’s safety in numbers.

Brackets in the Signature Block

Have you ever noticed how the signature blocks of some contracts have brackets at the end? Have you ever wondered what the brackets are doing there? Well, here’s the answer. In the days when contracts were written by hand, the drafter would draw a large curly bracket around the signature block.

When contracts switched from being produced by hand to being written on typewriter (about 1890), typewriters had no key for a large curly bracket, so they adopted the convention of using a number of ordinary brackets instead.

Back to that first Apple computer again, let alone the word processors which were commonplace by the 1980s.  Lawyers have had the ability to use large curly brackets for decades or – radical thought! – no bracket at all.

Did the practice change?……………..err, no.

PS Happy 4th, US readers.

Even US judges aren’t keen on them: “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”