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Comment by anticristi | Hacker News Reader

I recently had to sign an agreement where I had to fill my name 3 times within the agreement. It's only then that I realized that good lawyers know variables: "This agreement is signed between ... henceforth called Employee and ... henceforth called Employer."

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I’m not a coder but a designer, but I also have some experience in this space. This is also one of those areas where the HN crowd will think, “I’m so much smarter they should just do X isn’t it obvious?” What happens is that clauses are often litigated over and over and the successful evolution of the clauses that survive court battles and arbitration are then used wholesale in future contracts because the law is so settled. So it’s hard to change clauses, even to replace some small things with seemingly equal things (names vs variables in this case) because that opens up cans of worms because the clause is no longer identical to the litigated one. So the efficiency gained by only needing to write your name once is lost in the danger of additional litigation.

One analogy would be to not roll your own crypto. You may think you got it right, but better to just go with the battle tested solution.

This is also one of the many reasons people incorporate in Delaware primarily. The law is settled and doesn’t change, people can rely on it, so they use the clauses that were litigated and have settled meanings for decades.

You're not saying that the new idea wouldn't be right, but that there could be complexities the outsider would miss. I don't think anyone would disagree. But variables vs rewritten names (for example) would still be the right idea, it's just that the body of existing work hampers agile changes.

The way to deal with this is write the idea down with the blockers and benefits and work to enable it slowly. For instance, forgetting one of the three signatures needed would similarly doom you, so it's not all risk, it's also reward.

Almost any consultant deals with this constantly, in any industry.

Can you explain why name vs variable would matter? I could totally see this for other seemingly small changes, but name vs variable doesn't change the meaning at all.

Sometimes having you do something manually is part of the point. Areas of legal risk or when you're acting against your own interests are areas where the attorney might want to draw extra attention. Think of it as an "Are you sure?" dialog.

An example: when I was doing basic legal assistance, we had a lot of folks who wanted a power of attorney. Many of them insisted on getting a general power of attorney. There are significant risks that such an instrument may be too powerful, and also that it may not be powerful enough. Eventually, we had a disclaimer on the back of the request form that they had to rewrite, by hand, before we would draft the instrument for execution.

I'm curious to hear more about the affect of adding the disclaimer. Did it mean fewer people put in the request? Did it prompt them to ask more questions? Did it replace in-person discussions of the significance of the decision? I'd love to hear more details of how the change played out.

Fewer people ended up requesting them. It was common knowledge that they can be abused, so when we would explain the risks people would tune us out and their eyes would glaze over and they would insist. By making them rewrite by hand that there's also a risk that different companies and agencies will refuse to honor them, they finally understand that the risks are not just theoretical, but practical.

Yes, they even define terms in their contracts' preambles.

But be very careful about capitalization (it's "Employee" if you refer to the aforementioned employee, not "employee"), a wrong lowercase initial letter, and you may lose a lot.

Good point, but it raises the issue of checklists. If this area is too dangerous to tweak, how do you take care to avoid manual versions of these mistakes? Is there a step to search for words in the wrong case?

Usually you'll find that the new idea is good, in some contexts, but that exploring it surfaces new requirements and existing ones that were poorly understood. Usually there are things that aren't being done correctly now, that when documented and planned for, change the equation.

But the big benefit of outsiders isn't their ideas (though it often is), it's their ability to help cut through the insider problems. Usually insiders know what to do but are hampered by not only the difficulties, but the politics. Someone who doesn't know the conflicts can say that the emperor is naked, that doesn't magically clothe him but allows the tailor's who've been calling it out already to actually be heard and then the problem can actually be corrected.

No kidding. What's worse is when you capitalize defined terms but then have to translate the contract into a language that has no capital letters, like Arabic, Korean or Thai.

I tend to start my contacts like "Vendor and Customer agree: ..." and then add "Vendor" and "Customer" tags to the signature pages at the back.

There's really no reason to be repeating nicknames, legal entity names, jurisdictions of incorporation, addresses, and the like all over a contract.

Yep - My thoughts exactly when I seen the verbiage in my court docs

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