Graceful degradation was something that I had originally heard of in a computing context, but that I find has real application in the legal field (which is my field of work). When giving legal advice, whenever possible, you want to give guidance that will work even if only part of it is followed. (Because even as an in-house lawyer, I can pretty much count on my clients ignoring or reinterpreting my advice pretty regularly.)
This is especially important when some action or behavior becomes critical, but only in certain circumstances. For instance, advising my engineering clients NOT to do their own research into our competitors’ proprietary technology is very important advice (because if they do, it leads to higher damages if they are found to infringe patents on said technology, and can also put the company at risk for misappropriating another company’s trade secrets). On the other hand, if they are to learn something proprietary about a competitor, it is critical that they let the legal team know about it, since the consequences of mishandling that information are so high.
So to attempt to give gracefully degrading instructions in this space becomes a little self-contradictory if half the instructions are forgotten. “Don’t try to reverse engineer competitor’s code. But if you do, make sure to tell me about it.” This usually results in clients remembering either: “Don’t tell the lawyers if you learn competitor information” (resulting in not warning us they have competitor info) or “Be sure to tell the lawyers about any reverse engineering you do” (resulting in teams going out to try to specifically research competitor information).
This type of “Don’t …, But if you do …” situation resists degrading gracefully, but comes up more than I’d like.
On an unrelated note, when I first learned this term, I just had an image of a very refined woman at a fancy dinner party, taking a sip of her wine and then turning to her husband and saying, “Darling, I love you, but this is simply the worst affair you’ve ever dragged me out to.”
The “sin, confession, priest” metaphor is a great anchor—that’s very similar to the feeling we try to project when we have these discussions with clients. And, related to Raemon’s question, that’s part of how I try to address the issue.
Specifically, we cast the instruction as much more of a simple commandment, leaving off the “But if you do” clause entirely from the particular guidance. So in this case, the instruction is: “Don’t reverse engineer competitor technology. Including, don’t buy copies of competitor tech or go searching for inside information. This information is risky for us to have (for various legal reasons I can bore you with, but aren’t important right now), and so you DON’T WANT IT.”
This guidance, along with any other ‘commandments’ goes into the general body of “Legal says ‘Don’t’” instructions. Which is more or less what most folks expect from a legal department. (We work hard not to be, but a lot of legal teams are considered the “Department of ‘No’ ”.)
And then, we overlay the number one rule over the top of all other guidance, and we finish with this every time: if you think you did something you shouldn’t have, tell us right away. If we don’t know, we can’t help you.
So to the original metaphor, we try to make ourselves part of the path to absolution (or at least mitigation), so that the rules can be simpler.
On the whole, it’s a little bit of the reverse of the original “Don’t … But …” construction. We try to flip it to: “We can help you if you screw up, but only if you tell us. Here’s what we hope we don’t have to help you with.” This way, if they remember a “Don’t”, it’s all good. If they forget a “Don’t”, but they remember “in case of doubt, ask legal”, we’re mostly OK. (If you sin, confess and get forgiven. If you don’t sin, good for you.)
In more semantic terms, we try to avoid the “But if you do …” construction, since that seems to stick with people in a way that ignores the “Don’t” part of it. By making the top rule, “let me help you if you break a rule”, it’s easier to keep from making the activity that breaks the rule sound like a premise for positive action.
I wouldn’t say we do great with this, but it’s part of an overall effort to cast legal as useful advisors (also a priestly role), rather than enforcers.