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.
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?
End of amendment. (3 words)
Write It. Refine It. Then Stop.
Strive for clarity in your writing. When you get there, stop writing.