In the March 2013 edition of the ABA Journal, Prof. Bryan A. Garner published a very informative article on lawyers fooling themselves into believing that they are experts on writing when they actually do not write very well. Bryan A. Garner, Why Lawyers Can’t Write, ABA Journal, March 2013, at 24−25, 64. Prof. Garner’s conclusion is that transactional lawyers do not write as well as litigators or at least that transactional lawyers are less likely to admit that their writing needs improvement. I disagree with Prof. Garner. He admits that his experience has been primarily with litigators and judges. Truly his reckless denigration of language used by “practicing contract-drafters” smacks of litigator snobbery.
Prof. Garner highlights three usage issues that he indicates are particular to contract-drafters and that he calls “drafting errors.” Id. at 25. Although it’s good to be reminded that many people consider these usages to be stylistic flaws, they’re hardly errors because they seldom cause ambiguity by themselves.
First, he points to the common use of herein, condemning it as being invariably ambiguous. Id. at 64. Certainly the writer should specify instead whether the referenced section of the document is the sentence, the section, or the entire document. But is it inherently ambiguous? No. Generally, we understand that herein means the entire document. As long as the rest of the document is consistent with this reference, it is not ambiguous.
Second, he deplores the use of provided that and provided, further, that, and provided, however, that. He believes that for clarity these terms are susceptible to too many meanings. Transactional lawyers often use these terms to introduce the exceptions to a general rule, and when used in an otherwise clear sentence, they properly serve the purpose of introducing these exceptions. For example, a judge will understand the meaning of “I agree to deliver five legislators to your office on Tuesday, provided that if they escape on the way, my obligation will be ended, and I will not owe you damages.” Except that would be plainer and better in this sentence, but the meaning of provided that is made clear by the context. Prof. Garner is correct to decry the use of provided that in briefs—provided that is not useful in a brief for the same reason that it is necessary in an agreement. In a brief, the writer wants to make a firm argument with no hedging exceptions. In a document, the writer often needs to state a general rule, then set out all circumstances that will permit performance that is different from the general rule. We need a signal such as provided that or except that to announce the start of these exceptions.
Third, he complains about the use of such in place of this, these, those, and the. I agree that it’s poor form, but is it ambiguous? I don’t think that a judge would confuse a reference to “such Property” with the exclamation “such Property!”
What Prof. Garner does not recognize (or refuses to admit) is that litigators use the inelegant herein, such, and (according to Prof. Garner) provided that every bit as often as transactional attorneys. I doubt that they cause the judge to misunderstand the brief writer’s argument—though they may cause a discriminating judge to question whether the writer reads newspapers or anything else not written by another lawyer.
I wouldn’t be so foolish as to assert that good transactional lawyers write better than good litigators, but the prose of both types of lawyers needs improvement. Transactional lawyers should be more motivated to write clearly. For litigators, a brief is all about the persuasive moment. For a good transactional lawyer, precision is what is important. Our need to be sure that others will understand our clients’ intentions when they read our documents in the future can and should make us clearer writers—and I believe that it does.
Of course, in many situations, such as loan transactions and small property purchases, the client wants the lawyer to use the standard forms for that transaction, without costly edits. In his blog, Ken Adams apologizes for transactional lawyers, asserting that “Litigators actually write; transactional lawyers copy and adjust.” Ken Adams, Who’s More Delusional About Their Writing, Transactional Lawyers or Litigators?, www.adamsdrafting.com/blog (posted Mar. 2, 2013). I hope that Mr. Adams was being sarcastic, but he has a point.
Our opportunity to draft in the best way possible arises when the transaction is big enough and unique enough to justify a custom document or a new form. In these circumstances, the best transactional lawyers may start with a form, but they think about their words and place them carefully in context, avoid archaic usages, and express their client’s intentions plainly and clearly—or at least they strive to achieve those goals.
The only explanation for Prof. Garner’s conclusion that contract drafters do not write as well as litigators is his limited experience with documents drafted by good transactional lawyers. He is probably reading old forms drafted by litigators.