Contracts, Floyd Abrams, Reader Polls, Richard Posner

Do Lawyers Actually Read Boilerplate Contracts?
Richard Posner and Evan Chesler don’t; do you?

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

This generated laughter from the crowd, due to Judge Posner’s status as one of the greatest legal minds of his (or any other) generation. It was amusing to imagine the brilliant Posner flipping page after page of paperwork and mechanically scribbling next to every “Sign Here” flag, without even bothering to read what he was signing. It’s the kind of behavior one would expect from a person earning $35,000 and a buying a $600,000 home two hours outside of Phoenix, circa 2006 — but not from one of America’s leading jurists.

As it turns out, Judge Posner isn’t the only boldface name of the legal profession who skips over the fine print in form contracts….

Back in March, I served on a panel at the NYU Law School Forum with Cravath presiding partner Evan Chelser (among others). The panel was being videotaped, so before the start of the event, the speakers met in the office of the panel organizer, Professor Barry Friedman, to sign release forms.

Chesler was the first at bat. He whipped out an expensive-looking pen and signed on the dotted line, without even bothering to read the (fairly brief) release. After he signed without reading, the rest of us — myself, ACLU lawyer Louise Melling, and career coach Carol Kanarek — also signed in short order. If it’s good enough for Evan Chesler, it’s good enough for us, right?

I jokingly noted to the other speakers that we, a bunch of lawyers, weren’t bothering to read the release — and we had a nice chuckle over that. But, in our defense, it was just a speaker’s release for a public event, and we felt confident that NYU Law School wasn’t trying to take advantage of us.

(Prior panelists at NYU Forum events haven’t been so trusting. Professor Friedman pointed out that noted First Amendment lawyer Floyd Abrams, who participated in a Forum event a few weeks earlier, read the release over in detail and marked it up with changes before signing.)

Some might argue that you should read every word of every document that you sign, especially if you’re a lawyer. You might as well put that expensive legal education to use, right? But let’s say you’re reading through voluminous boilerplate documentation related to a home equity line of credit, like Judge Posner, and you come across some language you find problematic. What are you going to do — fight with the nameless, faceless lending institution over the content of their form contract?

I posted about Posner’s humorous remark on Facebook — by the way, I welcome new friends (and Twitter followers) — and an interesting discussion ensued. The main participants were a friend of mine who does read boilerplate, “K Reader,” and a friend of mine from law school who now teaches contract law, “K Prof”:

ATL readers: When you get some boilerplate contract — mortgage loan documentation, an apartment lease, a cell-phone service agreement — do you read it all the way through, word for word? Do you put your legal education to work, scrutinizing every clause in every provision, and objecting to the provisions you find problematic? Or do you just go with the flow, trusting that more diligent contracting parties have effectively kept abuses in check, and “free riding” on their efforts?

(hidden for your protection)

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