The Cut-and-Paste Contract
Each of us is always trying to make documents and contracts more precise and cover more areas of concern. One “easy” way to do this is to cut and paste sentences, clauses, or entire sections from other contracts that we encounter. But doing so often results in contracts containing inadvertent internal inconsistencies—often in style, and sometimes even in substance. The way drafters usually deal with potential discrepancies is not to do the difficult work of reworking the entire contract from scratch but rather by using the phrase, “notwithstanding anything to the contrary.” This formulation, however, does not make contracts clearer; rather, it is an indication that the contract contains provisions that may be ambiguous or incompatible. As difficult and as time-consuming as it may be, the solution is to rethink contracts and phrase them in such a way that a juror with an eighth-grade reading level can understand the meaning of each sentence.
The price of clarity, of course, is that the clearer the document, the more obvious its substantive deficiencies. For the lazy or dull, the price may be too high.
—Professor F. Reed Dickerson, Indiana University Law School
Think Hemingway, Not Faulkner
When I started law school many years ago, I asked a 3L how to get good grades. She said, “Write lots, use big words, and spell them all correctly.” Although that was sound advice for the situation, it is the wrong advice for drafters of contracts. Even when there are bench trials and no juries involved, judges complain about having to decipher a contract with “confusing and complex language and unclear construction, ” a provision that is “poorly worded and confusing,” or a document with “paragraphs as long as seven pages and lengthy, confusing sentences.”
Writing clearly and succinctly can be arduous. Mark Twain is reputed to have said, “I didn’t have time to write a short letter, so I wrote you a long one instead.” Writing short sentences in tightly-crafted paragraphs that easily convey to the reader precisely what you mean is not a simple task. The premier book on effective written communication, one that every lawyer should have, is The Elements of Style by Strunk and White, which states: “Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences.”
One of the problems lawyers have is that, in law school, we were not only trained to decipher poor writing, but also we were rewarded for it. We read cases written in legalese, most often by judges who employed Latin phrases, formalisms, and convoluted syntax. Our grades often correlated to how well we wrote in this style. We began to think that all lawyers should write this way, forgetting that judges were writing for other lawyers and judges, not for the lay public, and certainly not for a juror with an eighth-grade reading level.
Ernest Hemingway was known for his succinct and powerful writing. Once, when asked for the shortest story possible, he wrote: “For sale. Baby shoes. Never worn.” On the other hand, William Faulkner won kudos for his novels, though he could wax eloquent at length. In Absalom, Absalom!, there is one sentence containing 1,287 words.
In drafting contracts, we should seek to follow Strunk and White’s advice and emulate Hemingway rather than Faulkner.
Short Takes
As drafters of contracts and documents, we should keep in mind not only the reading level of the average juror, but also the fact that even judges, arbitrators, and mediators may not have been trained as transactional lawyers who are unfazed by a Faulknerian sentence.
Most legal writing is atrocious.
—Judge Mark P. Painter (Ohio)
There are many articles and references for better contract drafting, and from these, I have culled a few helpful suggestions:
- No multiple definitions. Not: The parties to this agreement are Conglomerate Inc. (“Conglomerate” or “Contractor”). Multiple definitions are confusing and a sign of a cut-and-paste contract. Use a single definition for each party or concept.
- All definitions in one place. Don’t scatter definitions throughout the contract. Not: For the purposes of this Section, “Utilities” shall mean . . . . Put all the defined terms in a single definition section, and then make it easy for the reader to understand by always putting the defined term in bold or italics or with the Initial Letter capitalized. But don’t use all caps; that’s hard for anyone to read, and it looks like shouting. For example, “Utilities” instead of “UTILITIES.”
- Define “shall” and “may.” Some courts have held that “shall” does not necessarily indicate something that must be done. Make the contract clear. Define “shall” as mandatory and “may” as discretionary,” and then don’t confuse things either by using “will” and “must” elsewhere in the contract or by writing that a party “shall, in its discretion, . . .”
- No legalese. Avoid all of the following: whereas, heretofore, hereinafter, hereinabove, and pursuant to. Never use “said” to modify any noun, such as, “said contract” (that’s as opposed to the unsaid contract?).
- No “and/or.” And/or has rightly been called “a Janus-faced verbal monstrosity” and “senseless jargon.” It can lead to ambiguity. For example, one court held that the following sentence was ambiguous: There must be approval from all appropriate divisions and/or groups. Did it require, if there were both divisions and groups that were “appropriate,” that all had to concur? Did it mean that the approval of “all appropriate groups” was sufficient even if a division did not approve? Clarity was impaired, not improved, through the use of and/or.
- No Latinisms. “Later,” not “subsequently.” “Before,” not “prior to.”
- Use the Oxford comma. When there are three or more items with either an “or” or “and” before the last item, put a comma between each item as well as before the “or” or “and.” That way one avoids confusing formulations such as “A panda eats, shoots and leaves,” or “She finds inspiration in cooking her family and her dog.”
- Give examples of calculations. Many contracts use words to describe formulas, percentages, or other mathematical calculations. To help clarify the formula or calculation for the judge or jury, give an example in the document using numbers so that there is no question about how the calculation should be made.
Conclusion
It’s easy to pull a form contract up on the computer, rework a previous contract, or plug in clauses from other contracts. Making the drafting process easy for a lawyer, however, is not in the client’s primary, secondary, or even tertiary interest. The client wants clarity and the ability to enforce the document precisely as intended. When litigation occurs, if a contract is hard to read or understand, the opposing party will likely assert that the document is ambiguous, which means that summary judgment cannot be obtained.
It can be tough and demanding to rethink how to write contracts clearly and succinctly and then produce a result that accomplishes these goals. That hard task, however, pays off when the contract has to be enforced.