Legal Writing: Slash Verbosity

Why does verbosity pervade legal writing? There are a number of reasons, but I’ve concluded that one major cause of verbosity is paranoia—the perceived need to negate possibilities that are in no way being suggested. Instead of simply stating what needs to be stated, far too much legal writing reflects a fear that something else has been implied, and then tries to negate the implied possibility.

There’s of course also the typical legalese that adds to the problem. Verbosity isn’t just annoying and time-consuming; it can lead to bad results.

Examples of Verbosity, and Revisions

Here are two examples of verbosity I’ve run across recently, along with my reactions (the numbered asterisks) and my revisions, plus word counts. I’ve also pointed out language that’s fatuous or just plain silly.

A contract term:

Client may terminate the Agreement if control of Service Provider is to be transferred (whether directly or indirectly, or in a single transaction or series of related transactions), or all or substantially all*1 of the assets or business of Service Provider are to be acquired by any organization.*2 In such event, Service Provider shall give written notice to Client of said occurrence*3 within five (5) days of Service Provider’s execution of any letter of intent, memorandum of understanding or similar document, or, in the absence of same*4, upon Service Provider’s execution of a definitive transaction agreement*5 regarding the foregoing.*6 Such notice will, with sufficient detail, set forth the proposed transaction to enable Client to determine whether or not*7 to terminate the Agreement. Such termination will be within Client’s sole discretion.*8 (125 words)

*1 “All” means everything. There is no “substantially all,” just as no one is ever “fairly certain,” “kind of pregnant,” or “somewhat dead.”
*2 Obviously there are a number of ways to change control of an organization. Is it necessary to attempt to list all of them?
*3 What does “of said occurrence” add? Nothing.
*4 First, notice is required in advance, then, with this phrase, it… isn’t?
*5 This is as opposed to a not-definitive transaction agreement?
*6 What does “regarding the foregoing” add? Nothing.
*7 “or not” is not necessary here.
*8 This sentence suggests doubt as to who has the authority to make the decision to terminate, but the whole point of this section is to assert that no doubt about that exists. Instead of clarifying this section, this sentence only clouds it.

My revision:

Client may terminate the Agreement if Material change to ownership of Service Provider is imminent. Service Provider must give Client written notice at least 5 days before formally agreeing to the change. The notice must describe the transaction in detail sufficient to enable Client to determine whether to terminate the Agreement. (49 words)

Sometimes the paranoia creates a need to write something, anything, and it leads to language that is not only verbose, but in fact has hardly any meaning at all.

This language followed a very simple contract amendment:

The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects.*1 Except as expressly set forth herein, the execution, delivery and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Contractor under the Agreement, as in effect prior to the date hereof.*2 Client represents and warrants the representations and warranties and provisions contained in the Agreement are true and correct as of the date of this Amendment,*3 and that no event of default has occurred and is continuing. (109 words)

*1 Is it necessary to point out in an amendment that the amendment does not void or terminate the agreement as a whole?
*2 Is it necessary to point out in an amendment that the amendment only amends what it says it amends?
*3 Is it necessary to point out in an amendment that the parties did not lie to one another in the original agreement, and are not lying now?

My revision:

End of amendment. (3 words)

Write It. Refine It. Then Stop.

Strive for clarity in your writing. When you get there, stop writing.

(photo: http://www.flickr.com/photos/alexmartin81/2444963715/)

  • George Wilkinson

    As a lawyer in private practice, I struggle with the verbal incontinence of some of my professional colleagues. But sometimes less is not more. Your asterisk 2 is not correct, as the drafting is designed to catch both a legal change of control, which requires the transfer of shares, and an effective change of control when the business is sold.

    George Wilkinson

  • http://www.koncision.com Ken Adams

    Andy: Some thoughts regarding your revised version of the first example:

    1. I’d use the definite article “the” before the party-name defined terms, to make the prose flow better.

    2. Why use a capital “A” in “Agreement”?

    3. “Material” is a dangerous word, as in addition to being vague it’s ambiguous. I’d be interested to know how you’d propose to define it for purposes of your revised version.

    4. “if Material change to ownership” reads awkwardly.

    5. The original version was intended to capture both change of control and sale of assets. On its face, your version doesn’t accomplish that.

    6. Rather than use the vague word “imminent”, I’d use an absolute standard.

    7. I recommend using words for numbers up to ten and digits thereafter, so I’d use the word “five” rather than the digit “5”.

    8. Do you want the second sentence (“Service Provider must …”) to be an obligation or a condition?

    9. What does it mean for parties to “formally agree” on something? Would it be enough for the parties to shake hands across a conference-room table, with their dealmaker faces on?

    10. I’d try to combine the third and second sentences.

    The basis for some of these positions is described in my book A Manual of Style for Contract Drafting.

    Ken

  • Chris

    Substantially all is a tax term with meaning. I agree with you in concept, but sometimes there is thought and reason put into the extra language. Also, as to 8, I believe the intent here is to say define the standard by which the consent can be withheld. Client doesn’t have to be reasonable in withholding its consent. It can do so for any reason. I’d stick with the boilerplate in this instance even if it seems to be overkill.

  • Alexander

    This article seems to have been written by an attorney who has not had enough of his language challenged in court. I agree with George that “sometimes less is not more.” Any ambiguity in a legal document can be challenged and lead to costly and time-consuming litigation. It is better to be verbose and clear than concise and ambiguous.

  • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

    I was indeed wrong in deleting “substantially all.” It appears we are stuck with this oxymoronic phrase, not just in tax law, but corporate law as well: http://lawprofessors.typepad.com/mergers/2011/05/sale-of-substantially-all-the-assets-and-the-step-transaction-doctrine.html

  • http://www.coyelaw.com Wade Coye

    Verbosity is a common issue with any style of writing and is not only limited to legal documentation. As some of the other commentors have pointed out, there are sometimes specific reason for the language which seems extraneous, as it can clarify legal terms or otherwise be useful in certain situations. Overall, I think your advice is good to keep in the back of our minds when writing. The bottom line is: the more you can say with the least amount of words will not only increase clarity for any reader, but can be much appreciated by clients, staff members, and colleagues.

  • Jo

    Many thanks for sharing Andy, as well as contributors. The more I revisit a text, the more I find possible holes, and I’m even guilty of introducing holes sometimes!

    @ Ken – I’m a great fan of yours, so forgive my ignorance, but what do you mean by ‘an absolute standard’ in this instance?

    I’m a bit late to the table, but here’s my two-penneth worth, which I’d value any feedback on:

    What seems ambiguous, at least to me, is when the client may terminate the agreement, and when the notice has to be sent. The sense seems to alternate between ‘before’ and ‘after.

    To reduce/remove this ambiguity, could we remove the ‘is to’ that suggests future, and use the following wording instead without altering the legal effect? Or does neither the revised version nor the wording below adequately express the intended meaning?

    (a1) The Client may terminate the agreement if the Service Provider undergoes a change of control, or if substantially all the assets of the Service Provider are acquired by a third party.

    Or could we focus on the ‘receipt of notification’ to at least remove possible ambiguity as to when the Client may terminate and avoid the ‘future’ sense? Could we also switch from acquire to sell to increase smooth flow and consistency of the active voice?

    (a2) The Client may terminate this agreement on receipt of notice from the Service Provider that it intends to undergo a change of control, or to sell substantially all its assets.

    Could we then follow with the service provider’s obligation (italics signify admittedly ‘dodgy’ wording – alternatives welcome)?

    (b1) The notice must be in writing, be sent at least five days before executing a change in control or sale of assets agreement, and contain sufficient detail to allow the Client to make an informed decision on whether to terminate the agreement.

    Or would it be better to focus on the Service Provider?

    (b2) The Service Provider shall send the notice in writing at least five days before executing a change in control or sale of assets agreement, and the notice must contain sufficient detail to allow the Client to make an informed decision on whether to terminate the agreement.

    My preferred version, a2 + b1, might not have a lower word count, but I hope it’s clearer and more precise than the original (but I’m keen to know if I’m wrong, and if instead I’ve increased rather than reduced ambiguity).

    And a final small niggle – is there any distinction between ‘change of control’ and ‘change in control’?

    Jo

    or is that not what you meant?

    • Jo

      Apologies – I’ve just noticed that I wrote ‘send’ when ‘provide’ would be more appropriate.

      I’m also thinking that something should be added after ‘detail’, namely:

      contain sufficient detail of the envisaged agreement

      Any thoughts?