Right around the time I graduated from law school my wife and I got a Border Collie puppy we named Tessa. At the time we lived in an apartment in Columbia, Missouri that didn’t allow pets. We got Tessa notwithstanding our apartment’s pet prohibition because we wanted to be able to train her while we had the time in the summer before we moved to St. Louis and both started jobs. She was a great dog.
Upon checking out of our apartment at the end of our lease, the manager charged us $500 for having a pet in violation of the lease. I said that $500 was ridiculous given that there was no damage to the apartment. Further, I noted that the clause in the lease, known as a “liquidated damages clause” was unenforceable due to various reasons I had learned in law school. The manager said “too bad – sue us – we’re keeping the your deposit to fund the $500.”
I was so pissed. It was clear to me that under the law, liquidated damages weren’t enforceable in this situation. So I went to see my contracts professor. Here’s what he said:
Professor Hemmings: “You have a good argument that liquidated damages aren’t enforceable — good job spotting that — but it doesn’t matter. You have run into something commonly known as the law of clerks.”
Me: “What’s the law of clerks? We didn’t learn about that in law school.”
Professor Hemmings: “The law of clerks states that with respect to day-to-day transactions, it doesn’t matter what the law really is — it only matters what the clerk you are dealing with is willing to do.”
The law of clerks has turned out to be one of the most important things I learned in law school (even though I learned it after I had graduated). Professor Hemmings was right and I’ve seen it in real life over and over and over again.
Here are some examples:
- If you go to your bank to cash a check and the teller says “please endorse the back” it is not helpful to say that Chapter 4 of the Uniform Commercial Code provides that banks can accept and cash checks without an endorsement (yes, I’ve really had this conversation and it embodies why so many people dislike lawyers). The only thing that matters is that you’re only going to get your money if you do what the teller says because she doesn’t care what the UCC says.
- When you go into your Schwab branch and submit a form to transfer money and the clerk tells you that you also need your wife to the sign the form, it’s futile to point out that even though she’s listed as a co-trustee on the account, paragraph 3 of Article VII of the trust document allows one co-trustee to take action without the other’s consent so long as they are married. The only thing that matters is that the person at the Schwab office isn’t going to transfer your funds without your wife’s signature.
- If you get a notice from from the State of Missouri saying that you owe tax because they are disallowing a credit you claimed on your return because they need Form INT-2 and you call them and say “I attached the INT-2 to my tax return, so it’s there and why don’t you just look at it?” — you are only going to get your credit if you fax another copy of form INT-2 to the person on the phone.
The lesson of the law of clerks is that the person on the other end of the phone at the cable company or the clerk at the DMV has great power. You are only going to get what you want if you follow their process. It doesn’t matter what the law actually is or what common sense might dictate — for low value transactions it’s best to just go with the flow of the system.