I was once helping a client out with a contract for the construction of a wall to be built around their company’s upcoming manufacturing facility, when they accidentally let slip that the wall was being built well in advance of the facility.
Before I could express my indignation at the false deadline, they hastily explained that the wall was being built to discourage repeated encroachment on the land acquired for the facility. Apparently local farmers kept breaking in to grow herbs, of all things. Imagine that.
Things had gotten to a point where the facility’s security forces had carried out an overzealous eviction drive with the help of the local police. The drive seemed to have gotten a little out of hand, leaving two farmers permanently maimed and another dead. Although the facility’s security chief was currently cooling his heels in the local lockup, as a reconciliatory gesture to the locals, the client assured me that they’d have him out in no time.
Life, my client said unexpectedly, could not always be reduced to a series of indemnities in Times New Roman, 11, no matter how much we might want it to.
We as lawyers can’t help but treat the law as a zero sum game - Cory Doctorow puts it best here when he says “[t]here is a toxic strain of competitive sadism in the law, an ethic of victory through someone else’s humiliating defeat”.
I think that’s worth remembering the next time we draft a contract with broad rights grabs against a company that can neither afford the contract, nor to walk away from it, don’t you?