In ancient times, the Anglo-Saxons held a festival every year on the day of the spring equinox in honor of mother goddess of the spring, called Eastre. A rabbit was used as a symbol of fertility and eggs were painted with bright colors to represent the sunlight brought by the coming of spring. The eggs were then given to friends and families as gifts, or used in egg rolling contests. It was not until the eighth century that a monk named St Bede proposed the word “Easter” as the name for the Christian celebration we know today.
Most families who celebrate Easter with eggs and bunnies and candy don’t know the story behind the tradition, but they enjoy it anyway. They may even think it has something to do with their religion, even though it was taken from the “Pagans”. When the Spring Equinox rolls around, we bring out the decorations and follow these fun rituals because, well, because that is the nature of a tradition.
But when rituals work their way into the fabric of our businesses, they can be less fun. Tradition for tradition’s sake—without regard for the meaning of the tradition—can needlessly affect a company’s productivity and competitiveness. And as an in-house lawyer, I can tell you that there is nowhere in a company where this is more prolific than in the legal department.
“We’ve always done it this way….”
When businesses communicate and enforce the same policies for years and years, it is easy to forget the reasons for having those policies in the first place. As the general counsel of an electronic signature company, I have worked with customers whose paper processes have understandably left them with legacy practices that may no longer be relevant in an electronic world.
Taking customers through the exercise of revisiting the objectives and goals of an old policy is at times challenging. Chances are that the people who performed the risk assessment and implemented your current policy are long gone, and those in charge of enforcing them have not had the opportunity to reevaluate them from a 21st century perspective. All of us – ALL OF US—are guilty of participating in some empty rituals that we mistake for legal or procedural necessities.
“Please initial at the bottom of every page…”
I recently spoke to a fellow general counsel who wanted to “automate” the placement of initials at the bottom of every page of an electronic document. We are all familiar with this practice in the paper world, where the parties are required to scrawl their initials at the bottom corner of every page of a lengthy document. As irritating as this practice can be for the participants, there probably were some good reasons for doing it for paper documents. For example, it was good way to authenticate the document in court – demonstrating that each page was part of the original written contract. Getting initials is also a good way of affirming that the signatory has acknowledged a particularly important part of the document.
Nevertheless, the practice is not driven by any legal or statutory requirement. This is almost always an internal policy issue, and the reasoning behind the policy will give you the answer to the question of whether you want to automate this process. And in each case, the answer would be “no”.
For example, if the reason for initialing every page is to ensure that each of the pages is part of the original document (i.e. to maintain data integrity), the practice would be a classic case of form over substance: an electronic record is not a stack of loose pages but a single secure object that, if properly tamper-sealed, cannot be subjected to the old switcharoo. One signature on that record is as good as 400, so initialing the pages is superfluous.
If, on the other hand, the rationale behind the policy is to assure that each page has been read, then programmatic placement of initials on each page of the document is arguably a misrepresentation of the process it is intended to enforce. That is why at DocuSign, we have resisted the inclusion of this ability in our process. I believe we were vindicated by the “robo signing” scandals that attended the mortgage crisis.
Make an effort to convert a Pagan today.
Since I’m in the business of bringing disrupting technology to market, I challenge people every day to ask the annoying question: why do we do it this way? When it comes to giving up paper records and ink signatures, the reactions are often visceral. That is often because there is no good answer; in fact, the average paper and ink process is so fraught with risk and expense that it can only be defended on, well, quasi-religious grounds. It is hard to admit that the things you so passionately believe in are simply not supported by logic or science.
Justice Felix Frankfurter decided a legal issue one way in 1943 and then completely reversed course in 1949. He gave this explanation in his opinion in Henslee v. Union Planters Bank: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Genius.
There’s the oft-told story about a woman who used to cut the ends off the ham before putting it in the oven. One day, her young daughter asked why she did that. “Because my mom used to do it.” But the question nagged at her, and at the next opportunity, the woman asked her own mother, “Why did you used to cut the ends off the ham?” The mother replied, “Because that’s the way your grandmother used to do it.” Fortunately the grandmother was still alive, so at her next visit, the woman posed the question of her grandmother. The answer? “So it would fit in the pan.”
If you’re looking to hide a few eggs in the grass for fun in the next few weeks, go for it. But when it comes to looking at corporate policies, it may make sense to first find out what goals are meant to be accomplished by those policies. You may find you can keep whole lot of ham.
Tell me about your pagan rituals. I would love to share them with our readers in a future column.