In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
Put simply, don’t ever take a fence down until you know the reason why it was put up.
This is a life rule, but its application to law is abundantly clear and important.
Policies and procedures that are in place are likely there for a purpose – another attorney has set it up that way for a reason. The same is true with the contract. More than likely there is something there you don’t see. Something their experience and perspective provides that you can’t perceive. They are not looking at it on an individual basis, but how the process has been handled over the course of dozens of cases. The process is designed to address multiple problems that could occur along the way. What might seem inefficient to you could actually be the appropriate amount of due diligence required to make sure something is done right.
A constant source of ridicule and derision is that we do things because that’s “how we’ve always done them,” suggesting that the only reason behind prevailing practice is tradition and inertia. It allows lawyers who think they’ve got a better way to dismiss the “old school” ways with a wave of their hand, because they see no point to it. And that’s the key: they see no point to it, not that it has no point.
We have rules that get in the way of “the future,” and given the combination of hard times and massive technological change, many let their mind race toward what they perceive as innovation because they are certain they have a better way to do something. Put enough of these people in a room and they will change everything. Because nothing ever developed up to now has any reason to exist, at least as far as they can tell.
Chesterton’s Fence expresses a point that I’ve struggled to explain many times over. Almost everything we do in the law came about for a reason, usually after dispute from all quarters and ultimate resolution based on the best ideas available at the time. Some of it persists because it’s taken on a life of its own: why do we use archaic language in documents? Because a thousand opinions make the language clear beyond question, and we know with certainty what some peculiar phrase means. Start changing up language and you introduce confusion into the terms, which rarely serves your client’s interests.
This doesn’t mean that nothing can ever be changed. Sometimes, the fence was built because of the conditions that existed at the time, and that condition no longer exists. It’s time to tear the fence down. Other times, the fence was built because a choice had to be made, whether to clarify our obligations to each other or to avoid the disaster of disparate choices clashing, and so we leave the fence alone because it settled an issue.
But when you don’t know why the fence is there, do not tear it down only to find that you’ve made a tragic error based on your limited understanding and appreciation of how the fence came to be built. We assume that things exist for a reason, and until we know that reason, destroying things can wreak havoc. We do not wreak havoc for fun and novelty.
Having wasted too much of my life sitting on committees that accomplish nothing, I’ve come to gain a great appreciation of institutional memory. That is, remembering the past so that its errors are not repeated. If I were inclined to get a tattoo, the face of George Santayana would definitely be in the running. Or a butterfly, but I digress.
Smart young lawyers (and stupid older ones as well), filled with passion and vigor, want to remake the legal world to cure all the problems they see. With their zeal, they rush to tear down fences they see only as blocking their path to Utopia, oblivious as to why that fence could possibly be there. It seems so pointless to them. Knock it down!
There are fences whose utility has come and gone, that are ripe for demolition. There are fences that were built as well as they could be at the time, but can now be built better. And there are fences that better be left alone or really bad things will happen. Knowing which fence is which before doing the damage is critical.