And we don’t even look similar.  From Davit Lat at Above the Law, reporting from the American Constitution Society, comes the revelation that Judge Richard Posner, noted intellectual and judge on the 7th Circuit Court of Appeals, doesn’t read boilerplate contracts.

Judge Richard Posner made one remark that stole the show at a panel about regulation at the recent American Constitution Society conference. We summarized his quip on Twitter :

Judge Posner at ACS panel: For my home equity loan, I got 100s of pages of documentation; I didn’t read, I just signed. #ACS10 #Posner #LOL

I bet he doesn’t use #LOL much either.  Neither do I!  Another similarity.  Coincidence?  I don’t think so.

A long time ago, I read through the contract for the alarm service for my home.  Every word of it.  It was painful, but inexplicably, I did it.  It was just a nightmare.  I started crossing off, marking up, changing and correcting it, line by line, to reflect the representations that were made to me by the alarm guy.  A couple of weeks after I sent it back to him, I received a certified letter informing me that they were terminating my alarm services.

I called up the alarm guy and asked why.  He told me it was because I had changed the contract.  But I didn’t change the deal, I explained.  The contract he sent me wasn’t the deal he sold me.  I just modified the boilerplate to reflect what he promised.  This is one of the reasons people hate lawyers.

The alarm guy calmly explained to me that he would do everything that he promised.  His word was his bond.  But I could either execute the contract as written or find another alarm company.  I decided to sign on the undotted line, and he’s kept his word for more than a decade since. 

Contracts are for lawsuit.  Contracts are what you refer to when arguing a cause to a judge or jury.  Handshakes and a look in the eye are all that honest people need to do business.  Contracts are prepared by lawyers.  Most are contracts of adhesion, where your choice is to sign or walk.  Walking isn’t always a real option.

We are besieged with boilerplate.  Buy a spatula and read the warning and warranty.  You would think it’s the space shuttle.  Who can be bothered with such nonsense?  We’re fully capable of picking out the handful of critical things contained in the contract, price, quantity, delivery, whatever, and the rest of it just falls to the wayside.  Life is too short to spend it on boilerplate.

Does this expose us to the castigation of judges and 3Ls?  Unfortunately, it does.  It never ceases to amaze me when a judge reams someone out for having failed to read the mandatory arbitration clause in his spatula purchase agreement.  You know, the clause that requires that Indonesian rules of procedure apply?  Heck, how many judges haven’t figured out that when the boilerplate is inside the shrinkwrap, you can’t read it until after the purchase is complete, and it thus can’t bind anyone to anything.  Of course, these aren’t circuit judges like brother Posner, so maybe they just aren’t that savvy with contracts.

Chances are pretty good that my failure (and Judge Posner’s) will some day come back to bite me in the butt.  I’ll take issue with something that was promised me, like the good I purchased will actually work for its intended use, and the judge will graciously inquire whether I bothered to read the clause that its intended use was to sell to some moron and make money for its manufacturer, as opposed to flipping my eggs over easy.  I’ll stand there, red-faced, and admit that I didn’t bother to read it.

The judge, now knowing that I have no clue what I bought into, will raise the Immortal Soul Clause.  Then it will be my turn to laugh.  Hah!  I don’t have one, so there!