Should we always defer to the lawyers when writing terms and conditions? No. Sometimes their overprotectiveness ruins opportunities.
(If you’d rather watch and listen, here’s a link to the podcast version.)
I have a contact who wants to be on this show, so he wanted me to send him one of those links where you can schedule an appointment. That’s a perfectly reasonable request. It’s annoying to go back and forth with “how about Wednesday” and that sort ot thing.
But when I looked into it, the terms and conditions were absurd.
For example, Calendly said I was giving them permission to view, share, and permanently delete any of my calendars.
I doubt they would ever do that, but why would I give them permission to do it?
We’re in a weird place where people don’t even read terms and conditions. I usually don’t, it’s just that this one was obvious and right in my face.
I, like most people, just check yes and move on with our lives. We have no idea what we’ve authorized all these people to do.
This raises a couple questions in my mind.
First, why do the lawyers have the final say on these things? They’re often not bringing any money into the organization. In fact, they’re ruining deals with their overzealous protectiveness.
The obvious answer is that they’re limiting risk. That’s one of their functions. And we all know there’s a cognitive bias called “fear of loss,” or “loss aversion.” People are more afraid of loss than they hope for gain.
By the way, if you want a primer on cognitive biases, I wrote about them in the latest issue of The Krehbiel Letter. I’ll provide a link below.
Second, where’s the check on the lawyers? One of the genius elements of the United States form of government is that we have one branch keeping the other branch from going too far.
Who’s keeping the lawyers from going too far?
Everywhere I’ve worked, people say “legal requires it,” and that’s that.
Why?
Why don’t we require them to give us some odds, so we can make an informed decision?
For example, back when I worked on a human resources publication, the lawyers were insisting on very onerous provisions in an employee handbooks, and I said, “What are the chances that this will actually be a problem?” The answer was, “slim.”
Sometimes it’s based on one case in Wisconsin, or something like that, so everybody in the country is being forced by their legal team to follow the decision of one judge in some county in Wisconsin.
Shouldn’t we tell people that? You can’t protect against all risks? Not only is it impossible, but it’s impractical.
Here’s my takeaway. Don’t cave when legal says they want something. Challenge them on it. Make them justify it. Make them put some numbers around their position.
You have to do that all the time. Why shouldn’t they?
