When Writing, Don’t Fear Absurd Arguments
You cannot, no matter how long or hard you try, write a document in a way that will absolutely prevent future disputes over that document’s meaning.
Language is not mathematics. It isn’t programming code. It’s imperfect, and kind of messy. All human communication is. So don’t create extra work (and extra, unnecessary, distracting words and phrases) by writing with the additional goal of forestalling some crazy argument someone might make in the future. Trying to do that will make your writing muddy, confusing, and ineffective.
Here’s one example. In reviewing a contract template, I came across a definition that referred to work product created under the agreement I was reading and “all prior agreements.” I deleted “all.” Then another attorney rejected my deletion, and asserted that “all” prevented any argument that “prior agreements” might not cover all prior agreements.
More is less
But imagine that a dispute over the contract arose at some point down the road. Would it be anything but absurd for someone (lawyer or not) to argue that since the phrase is “prior agreements,” rather than “all prior agreements,” the agreement in question isn’t covered by this sentence? Would anyone really do that? Would any sane lawyer expect a judge (or jury) to do anything but agree that if the document in question is an agreement between the parties, and was signed prior to the agreement in question, it falls into the “prior agreements” category? It’s possible that someone might make such an argument, but is it really a good idea to worry about that when drafting? No.
Contracts are replete with writing driven by just this kind of thinking. Certainly we want to make our language as clear as possible, and one way to do that is to think of ways that what we write could be challenged as to meaning. But it’s important that those hypothetical arguments we come up with be valid arguments, or at least rational. Because those are the only ones we need to worry about.
The Myth of Precision
I’ve featured these lines from the legendary British lawyer Lord Denning before, but we can’t read this too often :
Lawyers will so often stick to the letter and miss the substance . . . most of them spend their working lives drafting some sort of document or another—trying to see whether it covers this contingency or that. They would rather be accurate than clear. They would sooner be long than short. They seek to avoid two meanings, and end—on occasion—by having no meaning. And the worst of it all is that they claim to be masters of the subject.
This drive to cover every possible angle reflects what Bryan Garner refers to as the Myth of Precision. You can’t prevent every possible bad argument. So don’t try, because if you go down that road, you’ll add so much extraneous, fatuous gunk to your writing that what you’re really trying to express will be nearly impossible to suss out. And that’s where the real problems begin.
(image: saddle up from Shutterstock)