NEWSLETTERS › Making Things Stick

It’s April, making it a great time to ask:  How are those New Year’s resolutions working out?  According to a study published in the University of Scranton, Journal of Clinical Psychology, only 8% of people actually succeed in achieving their resolutions.  But making resolutions isn’t a pointless exercise.  Amazingly, according to that same study, people who make explicit resolutions are ten times more likely to attain their goals than people who don’t.

Maybe it’s a quirk of our profession, but at Mandel Bhandari LLP, we take a special interest in what makes people keep or break their commitments.  For hundreds of years, lawyers have been thinking about how to get people and businesses to keep their word.  Tools such as contracts, escrow accounts, and bail have all been specially designed to accomplish precisely these goals.  But, keeping promises to yourself presents its own sets of challenges.

Richard Thaler and Cass Sunstein, the authors of the best-selling book Nudge, think that whether or not someone is able to keep a promise is often just question of “choice architecture,” the context in which that person has to decide whether to stick to his or her resolutions.  So, whether or not someone is able to keep a resolution to eat healthy may depend on the “choice architecture” of the cafeteria:  The promise may be easier to keep if the vegetables are at eye level than if the candy is.  Whether or not someone is able to keep a resolution to save for retirement may depend on the “choice architecture” of their employer’s 401(k):  Is the default option for new employees to take home their entire paycheck, or to max out contributions to their 401(k)?

Of course, if you are making a promise to yourself, it helps to create your own “choice architecture”—and Ian Ayres, a law professor at Yale,  has founded a website called stickK.com, that allows people to do just that, with so-called Commitment Contracts.  The basic Commitment Contract has a devilish simplicity.  You pick a goal, say to lose a pound a week for ten weeks.  You set the stakes, say $20 a week.  You choose a referee, say a co-worker who is willing to stroll down to a pharmacy with you and watch you weigh in.   Then, once a week, you report to stickK.com whether or not you’ve lost the pound you resolved to lose, and your referee verifies it.

If you haven’t kept to your goal, stickK.com charges $20 to your credit card and donates it to charity.  For maximum commitment, stickK.com recommends that you choose a charity that you loathe.  For example, an ardent coal-lover might direct the $20 be sent to Greenpeace.

Yet another approach is to utilize new technologies that allow you to track yourself.   Everyone knows the surest way to lose weight is to exercise more.  And studies have shown that sleeping less than six hours a night leads to weight gain because it slows the metabolism and reduces the release of hormones that suppress appetite.  One acclaimed study found that if individuals set goals and keep a journal to track exercise, their activity rises by 27% over a four-month period compared with a control group.  Now it is possible to track your steps and sleep in real-time by using small, portable devices such as Up by Jawbone (a wristband) and Fitbit One (which can be clipped to your shirt).

And so we see the modern American:  surveilling himself or herself with wireless gadgetry and fining himself or herself via the Internet; but potentially keeping that resolution to lose some weight.

Which brings us back to lawyers.  What can you do to make sure someone sticks to the contract they are signing?  What can you do to avoid the need for litigation?  Closely tracking data helps both parties monitor performance on a continuous basis and allows them to remedy deficiencies before they rise to the level of a material breach.  Courts are reluctant to enforce automatic penalty provisions contained in contracts—but carefully structured and drafted liquidated damages provisions are enforceable in many circumstances.  When a party knows that it is going to pay a sum certain if it fails to perform, a party is less likely to breach.  (And, in the context of a loan, that party might even agree to automatic payment options if it gets a lower interest rate in exchange.)

We at Mandel Bhandari wish you the best of luck in enforcing all the promises in your life:  the ones you make to yourself and the ones others make to you.

MB NEWS

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MB TALKS

March 6 – Rishi Bhandari presented a CLE titled "Taking & Defending Effective Depositions."

March 20 – Rishi Bhandari Co-Chaired a CLE sponsored by the New York American Inn of Court on Trial Practice.  Rishi's presentation was on how to examine and cross-examine experts at trial.

Certified – Rishi Bhandari has been certified by the National Institute for Trial Advocacy as a Trial Practices Instructor.