People are constantly comparing new experiences against existing expectations.
I recently read an article called "The Best Interfaces Match the Way People Already Think," and it got me thinking about something that comes up surprisingly often in the legal world.
The article discusses "mental models" — the shortcuts our brains use to make sense of the world. When something is organized the way we expect it to be organized, it feels intuitive. We don't have to stop and figure it out. That's why familiar things work so well.
People are constantly comparing new experiences against existing expectations.
And the same thing is true for legal documents.
Sometimes, that's a good thing.
For example, if a company rolls out a new employee handbook that looks and reads broadly like the employee handbooks people have seen at previous employers, employees are more likely to view it as familiar, standard, and reasonable. The format itself helps build comfort and trust.
But there is also a downside.
Suppose a small company sends a proposed customer agreement to a large enterprise client. The terms may be perfectly reasonable, but the agreement is organized in a very unusual way. Say, the indemnification provisions are at the beginning, with the boilerplate appearing in the back.
The result?
The client and its lawyers immediately become uncomfortable. Not necessarily because the terms are bad, but because the document violates their expectations about how agreements are normally structured. It makes them feel on edge.
On the other hand, sometimes familiarity creates a different problem.
For example, imagine a vendor agreement. It arrives looking exactly like every other vendor agreement. Same section headings, same order, same overall structure.
That can create a false sense of security. Because it looks like every other vendor agreement, you assume it *will be* like every other agreement.
That is a very dangerous assumption to make. Even a minor tweak of the language can make a massive difference in the outcome of the agreement. Those changes may be easy to miss, but they can dramatically alter the rights, obligations, and risks created by the contract.
(And when that contract is between two businesses, the courts are much less inclined to get involved in a dispute just because things “look” unfair. So you may find yourself with very few options.)
In other words, a contract that looks standard may be anything but.
One of the most important lessons in contract review is that structure and substance are two different things.
Sometimes matching expectations builds trust. Sometimes matching expectations hides risk.
The challenge is knowing which situation you're dealing with.
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Disclaimer: This article constitutes attorney advertising. Prior results do not guarantee a similar outcome. MGLS publishes this article for information purposes only. Nothing within is intended as legal advice.