The Catch in That

This past Sunday we celebrated Intersections Day at the Collegiate Fort Washington Church. It is a time for Intersections, which itself is a multi-faith, multi-cultural project of the Collegiate Church, to strut its stuff, so to speak, at the various other congregations. This was the first time I was in New York to attend one of these “Days.” The Fort Washington congregation was wonderfully welcoming and generous to Intersections staff. Rev. Robert Chase, our Founding Director, was able to deliver what is titled “Scripture and Sermon.” One of the multi-faith elements of Intersections is that I am Jewish. I fully enjoyed the experience of a joyous service filled with graciousness, acceptance and song.

I am prompted to write this blog, however, by the opening words offered by Rev. Charles D. Morris, the senior pastor at Fort Washington. He quoted from Phillip Yancey’s book “What’s So Amazing About Grace,” the following passage:

“We are accustomed to finding a catch in every promise, but Jesus’ stories of extravagant grace include no catch, no loophole, disqualifying us from God’s love.  Each has at its core an ending too good to be true – or so good that it must be true... Grace means there is nothing we can do to make God love us more.  And Grace means there is nothing we can do to make God love us less.”

And I thought, “How sad it is that it is true that we are accustomed to finding a catch in every promise.”  In our pursuit of changing the values inherent in the exercise of power, wouldn’t changing the “culture of the catch” be a place to spend some of our time and energy?

This happens very often in the legal profession. I am a recovering lawyer having graduated in 1970 from the University of Texas School of Law. I am fond of saying:  “Every day I don’t practice law I feel better.”  In reality, even today I spend time at various organizations, including Intersections, reviewing contracts we are entering to do our work, to buy products, and to be hired to do something. The culture of the legal profession – interpreted as required by legal ethics of representing the best interest of the client – is to prepare totally one sided agreements and hoping the other party signs it without a question.

I have long been an advocate of plain English agreements. I am also an advocate of developing a “Golden Rule of Contract Drafting.” That rule would require that someone attempt to draft only contracts they would be willing to sign if submitted to them by the “other side.”

The problem is most severe when individuals are confronted with form agreements – “contracts” – which are totally one sided and when an individual doesn’t have any real bargaining power. That is when the Government should properly step in and negotiate, in effect, on behalf of consumers in the form of regulations which prescribed fair and just terms of an agreement. What would a credit card contract really look like if the consumer and the credit card company actually had to sit down and work out terms that were mutually agreeable?

But to me that is just the problem: The lawyers and legal profession teach that representation of a client means getting the most one-sided, unfair advantage possible.  What if the legal ethic actually required that lawyers to negotiated “fair terms”? This is not really about the core business bargain – the price is the price that is negotiated – it is almost always about the terms and conditions, though I understand some items are in fact part of a business deal, mostly it is about allocating risks and potential costs. 

It would be wonderful for the American Bar Association to engage in a project on “contracts without catches.”  How lawyers’ ethical responsibilities might be defined, or re-defined, to be in the pursuit of fairness and justice to all parties of an agreement. Today it is all about “got you” or “the catch.”   

Wouldn’t it be different if business agreements began to be based on trust? Wouldn’t it be amazing if the Government required all “one-sided’ contracts be drafted with fair provisions that gave similar right to both parties.  It might also require some changes in our court systems to provide for speedy and inexpensive justice for resolving disputes, but that is a blog for a different time. For that would be good, too!

Mostly wouldn’t it be wonderful if the culture changed and we were not accustomed to finding a catch in every promise.