The risks of complexity in 737s – and contracts

I’ve been keeping up on the Boeing 737 MAX 8 story/debacle, which has many fascinating aspects to it, among them: how a storied company like Boeing, whose brand is entirely dependent on the perception of safety, could sacrifice safety for short-term gain, and what happens when regulators can no longer keep up with the companies they regulate, and must therefore rely on the companies to regulate themselves.

Diminishing returns of complexity

A recent article in the IEEE’s Spectrum magazine explored Boeing’s errors in judgment and software design that led to the tragic loss of 348 lives. One point from the article struck me as directly applicable to legal drafting (which is not surprising, given the oft-discussed parallels between contracts and computer code):

Every increment, every increase in complexity, ultimately leads to decreasing rates of return and, finally, to negative returns. Trying to patch and then repatch such a system in an attempt to make it safer can end up making it less safe.

This called to my mind the outrageously long, dense contracts that we often see in our practice. In an effort to address every conceivable risk and situation – to make the contract safer – drafters and subsequent editors constantly increase the length and complexity of the contract. I have always felt that this is a fool’s errand – that the incremental gains (if any) from adding language to address potential risks are quickly offset by unforeseen consequences of the new provisions, the likelihood of introducing drafting errors or internal inconsistencies, and the inability of the contract parties to even understand (or unwillingness to read) an agreement that is too long and complex.

When it turns out that a provision causes a problem, the lawyer’s response is typically to revise the language or add new language (analogous to a software patch), rather than to simplify the contract.

There is no formula I know of to tell me whether a particular piece of text is a net positive for a contract. Judgment is involved. Our bias at goodcounsel is to keep language as general as possible, reflecting our philosophy that shorter is better.

Categorised as: Lawyering, Legal Drafting