If businesses don’t struggle with the ethics of “consent” to fine print, they should.
The debate has long ended; it is now universally understood that people do not read deeply buried disclosures of “terms and conditions,” and while boilerplates remain industry standard, so is the subsequent outrage by consumers about the morality of this choice.
From subprime mortgage lending to hurricane insurance, fine print once made a fine debate. Today, however, researchers and laymen alike acknowledge that these clandestine clauses remain unread, unrealistic, and therefore unwelcome.
Only a well-trained attorney could possibly decipher these legalese-laden contracts, which begs the question (well-put in the Iowa Law Review), “how seriously should contract law take consent in a world in which consumers must consent lightly to most of their contractual obligations?”
Yesterday, Amazon struck an unlucky deal with Visa on Prime Day. In addition to extra Prime discounts, holders of the Amazon Visa card also received 30% off all-day orders. Except, those coupon-cutting customers who didn’t read the fine print stating “while supplies last” were out of luck at check-out. Apparently, supplies didn’t last past 1pm and Amazon’s customer service lines fielded complaints.
What could Amazon have learned from the exchange?
- Don’t deliberately confuse clients with legalese
Sometimes it’s impossible to edit out all the legalese. After all, contracts must be succinct, legally binding documents requiring many years of experience and thousands of dollars to draft them.
Nevertheless, boilerplate verbiage and ultra fine print are things of the past. “Most disclosures arise in an already crowded field of boilerplate. As such, most people have no choice but to perform a kind of triage on their reading priorities due to the overwhelming volume of information that disclosees face in a given day,” explains Tess Wilkinson-Ryan, in “A Psychological Account of Consent to Fine Print,” in Faculty Scholarship.
“Distorted risk perceptions, salience biases, and framing effects make it very unlikely that consumers will read the terms of form contracts—and even if they do read the terms, it is unlikely that they will integrate the information into their decision-making process in a sensible way.”
Instead of frustrating your clients with ex-post explanations like, “it was in the fine print,” or “you read the contact before you signed it,” avoid complaints and liability later by writing clear-cut contracting language today. Include “while supplies last” in large print with the title, or–for law firm contracting–keep contracts at 12pt font and limit the number of pages.
- Clients are overconfident about their own understanding of contracting
So now you have a contract and you’re ready for clients to sign it. They consent—or do they?
People overestimate their abilities in general and, specifically, overestimate their natural talent for reading and understanding contracts.
For example, 88% of the American population rates their own driving as safer than the median driver. And, 85% of a random sample of residents of New Jersey thought that they had “below-average” risk of getting food poisoning [via Faculty Scholarship].
Most likely your clients will never admit they’re confused about terms and conditions your lawyers have laid out. So, take a minute to explain it again verbally. It may not be legally-binding like a signature, but it protects your practice ethically.
- Think more about what you should do as opposed to what you’re legally bound to do
Yes, fine print exists. Yes, consumers and clients are aware of it. Yes, unread terms of agreement are legally binding. No, it doesn’t absolve your firm from blame.
As lawyers or law firm managers, don’t get bogged down by requisite behaviors, such as including a boilerplate. Take a moment to think about what you should do as opposed to what you’re minimally required to do.
In the least, if you’re Amazon, you’ll save time, cost, and effort justifying your actions and, instead, lock-in loyal customers or clients—while supplies last.
For audio and training courses (including CLEs) on law firm management, including drafting contracts, maximizing legal networks, and building a productive, profitable law firm, go to C4CM’s website here.
- Wilkinson-Ryan, Tess, “A Psychological Account of Consent to Fine Print” (2014). Faculty Scholarship. Paper 1301. http://bit.ly/29PRsaV