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)

21 responses to “When Writing, Don’t Fear Absurd Arguments”

  1. I think family court might be an exception here, at least occasionally. Unlike other areas of practice, we’re drafting contracts between non-professionals to govern how they operate in their day-to-day lives. For us, provisions need to be so clear that a judge’s interpretation isn’t necessary — because litigation is expensive, and our clients’ goal is to avoid judges! The worse the relationship between two people is, the more detailed/explicit the contract must be.

    • Andy Mergendahl says:

      I clerked in family court, and I agree that often there is great detail required, in particular relating to children. But my point in the post was not that we should avoid detail, but that we should not try to concern ourselves with potential challenges to our document that are not valid.

      • Oh, I understood that, but in family court we are sometimes preparing against the absurdity that could hit. I think the standard for contracts in family court is not so much “what would a reasonable person say/do/think about this?” and more “what would these particular people, with their particular history, be likely to argue about later?”

        The unfortunate reality is that a pro se litigant in family court is less likely to get slapped with paying attorney’s fees for making an absurd argument than other kinds of litigants would be. Since there’s no disincentive for being unreasonable, it can become a free-for-all, hence hoping we can catch the most likely possibilities during the drafting stage.

  2. Jordan says:

    I totally disagree with the concept that lawyers should not strive to create the least amount of ambiguities while drafting a contract. Even the author’s example disproves the point being made. If the intent is to consume “all” prior agreements in the new contract, it makes no sense to omit the word “all.” What if the parties, for example, have many contracts with each other because they have several different types of business dealings? By leaving out the word all, you are leaving an opening for an attorney to argue in later litigation that the new contract only related to prior contracts on the same subject matter (not such an absurd argument). But the point is, it’s the lawyers job to close as many ambiguities as possible. That’s what you’re being paid for, and frankly from my perspective as a litigator, it’s what separates quality lawyers from the rest of the pack.

    • I did not suggest that lawyers should not strive to eliminate ambiguity. I suggested that they should not clutter their contracts with language that strives to forestall challenges that lack merit.
      If my litigator told me he was going to argue that “prior contracts” means “prior contracts with similar subject matter,” while the other side was arguing it meant “all prior contracts” (which is the plain meaning of those words), I’d be in the market for a new litigator that very day.

      • Jordan says:

        Including the word “all” in your hypothetical is worth including if it can possibly eliminate years of litigation, hundreds of thousands of dollars in legal fees, and even a slight risk to your client of an adverse ruling by a judge who does not agree with your interpretation, no?

        • Andy Mergendahl says:

          Reductio ad absurdum. You’re taking an example that fit well into a blog post and trying to make it the heart of the discussion. But, hey, if you want to bill your clients to draft that way, go right ahead.

          • Jordan says:

            Reductio ad absurdum would be a great name for band! I think I’ve underestimated you, Mr. Mergendahl. ;)

      • static says:

        The purpose of a contract is two fold; to clarify for the parties their obligations and to establish intent should the parties have a dispute and end up in court. And once in court, the potential exposure for arguments that seems “absurd” up front, but not so much later, can be devastating.

        Your point that a writing need not address every conceivable possibility, no matter how crazy, is fine. The problem is that what seems crazy to one side may not seem as crazy to the other or a judge. Happens all the time in litigations. So it’s not to disagree with your theory, but the practice is far harder to execute, and if done wrong, could prove disastrous.

        Jordan’s point, that when a word (or phrase or sentence) here or there can prove conclusive, be conclusive. Why expose a client to potential disaster when it can be so easily avoided? If a client’s draftsman responded, “I’m sorry you’re defending a suit that’s costing you tens of thousands of dollars, but I didn’t want the contract to look cluttered so I left the word ‘all’ out,” the client will not be pleased.

        • By focusing on whether “all” creates some theoretical ambiguity, the comments largely ignore the overall point of the column: that drafting contracts in plain English is far better than the traditional mumbo jumbo.

          I can’t explain it better than Professor Joe Kimble, who deconstructs the more-words-is-more precise canard in The Great Myth That Plain Language is Not Precise.

          • static says:

            Professors have lots of really brilliant things to say, but using one poorly written contract clause as an anecdote to represent all legal writing in the history of the law really doesn’t strike me as persuasive. In fact, it was a pretty lame effort.

            So when courts start concluding that unfamiliar language (meaning, language that hasn’t been interpreted for decades to have specific legally cognizable meaning so that a party can rely on it and know that a court will interpret the language to mean precisely what the party intended it to mean), means what you keep saying it means, that will be great.

            In the meantime, are you aware of any judge who held for a party whose contract was written in plan, but legally unfamiliar, language because you said so? Not that I disagree with you, but I’m just trying to figure out what to tell my client when I follow your plain language advice and my client loses and has to pay out a few million on the judgment.

          • 1. The Supreme Court trusted Joe Kimble to rewrite the Federal Rules of Civil Procedure. But hey, ad hominem all you like.

            2. Please tell the world which words or phrases have been “interpreted for decades to have specific legally cognizable meaning.” I deal with concrete arguments, not abstract ones.

            3. There are very few legal terms of art that are required by case law, as this article points out. See also #2, above.

            4. I’ve litigated cases where the dispute arose because transactional lawyers “have little idea how little they know.” I’ve never litigated a case where a plain-language contract caused the dispute. If you have an example, please let me know. I will make it a subject of a Lawyerist post.

            5. The question transactional lawyers should be asking themselves is what they will say to clients when they draft a contract that’s so verbose and obscure that any two-bit litigator can get by a motion to dismiss because of the contract language alone. Of course, I suppose, they can shirk responsibility by claiming that precedent required the language. See #3, above.

            I understand that transactional lawyers want to jealously guard their franchise. But protecting that franchise at the expense of clients is no way to do it.

          • Jordan says:

            I certainly hope the irony of this fun little debate serving as a microcosmic warning for the realities of litigation is not lost on anyone. Personally, I think its pretty hilarious. By all means, carry on…

          • static says:

            First, if you’re going to use “ad hominem,” then learn what it means. The attack was to the use of an anecodotal exemple to make a overaching point. That ain’t ad hominem, and you’re resort to calling it an ad hominem to deflect the issue is well beneath you.

            And does leading the team that that make Cooley law professor Joe Kimble infallible? Or your other love, Bryan Garner? You are such a dedicated fanboy, and your heroes can do no wrong. But you can bet both Kimble and Garner know what ad hominem means.

            Second, you are the king of abstractions, having yet to give an example of anything you’ve ever had to say passing muster with anyone but yourself. So spare me the demand for concrete examples, which (as your linked article did), are mere anecdotal strawmen. If you can’t deal with abstractions, then maybe you ought to find an occupation other than the law, which requires the ability to think in the abstract.

            Third, no one said the caselaw “requires legal terms,” so there you go, making up strawmen again. But that said, it kinda does (since you are apparently more comfortable with concrete examples). What about “time is of the essence,” a very peculiar phrase with a very clear legal meaning. Write something else and try explaining to a judge why you chose not to use a phrase that has a clear and precise meaning in the law? I’m sure the judge will care deeply about your political views on writing and will forgive the needless confusion.

            And by the way, I’m not a transactional lawyer. Not even close. Looks like you struck out all around.

          • I’ll go one more round because this is too easy — and too much fun:

            1. When you start a rebuttal by saying “Professors have lots of really brilliant things to say,” you’re appealing to a perceived bias against academia to undermine the merits. So you can spare me the vocabulary lesson. Kimble’s column — one chapter in Lifting the Fog of Legalese: Essays on Plain Language (2006), which by the way gives more examples of his argument — does focus on one indemnification clause to make an overarching point. That doesn’t mean you can dismiss it as irrelevant.

            2. You know what ad hominem means because that’s where you go next, calling me the “king of abstractions.” But if you would read my Lawyerist columns, you’d know that I back up my advice with authority, not this-is-how-I-do-it-so-it-must-be-right fluff . Sometimes I cite Kimble. Often I cite Garner (which is no surprise, given that he’s considered the authority on American legal usage). But I also cite Patricia O’Conner, Barbara Walraff, Theodore Bernstein, William Safire, Richard Wydick, Ross Guberman, David Melinkoff, Michele Asprey, Matthew Butterick, Rudolf Flesch, H.W. Fowler, Wilson Follett, Robert Burchfield, Ernest Gowers, John Trimble, etc. etc. And that’s just in the last three months.

            With regard specifically to Garner, and my alleged “fanboy” status, he hasn’t convinced me that his deep-issue approach to framing issues in briefs is workable in most cases. I also don’t agree with him about putting citations in footnotes. So hurl pejoratives all you want, I do my homework and don’t rely on one or two sources. You, on the other hand, appear content to take a blogs, like Lawyerist, to impart your personal take on what others have written. And you do it anonymously. Whose advice is more useful to readers?

            3. [What about ‘time is of the essence,’ a very peculiar phrase with a very clear legal meaning.”] Does this phrase have a “clear and precise meaning in the law?” This article suggests otherwise (a 10-second Google search would have spared you this embarrassment). Ken Adams also takes a dim view of the phrase, saying that “it’s unsurprising that courts have proved willing to ignore ‘time is of the essence’ clauses on the grounds that you can’t assume that the parties to a contract understood and agreed on the ostensible meaning of the phrase.”

            Do you have any other examples?

            4. [I’m sure the judge will care deeply about your political views on writing and will forgive the needless confusion.] Good writing has nothing to do with politics, so can you make your point in plain English?

            5. [And by the way, I’m not a transactional lawyer. Not even close. Looks like you struck out all around.] I didn’t say that you were a transactional lawyer. Next time, read more carefully before spouting. In fact, I’m not sure what you are. You visit this blog to show everyone how smart you are, but you do it anonymously. Do you recall what Teddy Roosevelt said about the man in the arena?

          • static says:

            Since you’re having a good time, I’m game for one more round.

            1. An ad hominem is a logical fallacy, not a mean word (or a superimposed projected belief that my saying “professors have lots of brilliant things to say” was a mean thing to hurt your feelings). This is an ad hominem:

            You are stupid so your arguments are stupid.

            This is not an adhominem:

            You are arguments are stupid because X, Y and Z.

            This will be on the test.

            2. You note many articles. You have failed to cite a single decision that supports your plain language claims. We’re lawyers. We do that court thingy, where judges decide what writings mean and whether our clients win or lose. Authors of articles don’t. Those are abstractions. Decisions are real.

            3. Ken Adams doesn’t like “time of the essence”? Seriously? Who cares. He’s a guy selling contracts who has tried to position himself as an alternative to all the other guys selling contracts. Let me know when he becomes a judge. If you want to know whether “time of the essence” has a clear and precise meaning, check the caselaw, not articles or contact salesmen.

            4. I have no clue what you’re trying to say. So much for plain english.

            5. I read that to suggest that I was one of those transactional lawyers, who are resistent to your views. If I misunderstood your point, maybe it was because you conveyed it poorly. A good writer doesn’t blame his reader for not understanding what he’s trying to say.

            But you are very wrong when you suggest that I comment here to “show everyone how smart” I am. If that was my purpose, I wouldn’t be anonymous, so everyone would be so impressed with me and make me the queen of the Lawyerist (Yay me!!!). On the other hand, do you post here to show everyone how smart you are? If Matthew Salzwedel is indeed your real name.

            Your turn.

          • static says:

            Oops. One more thing. Notice how I don’t start crying ad hominem, ad hominem, because you wrote something mean about me being here to “show everyone how smart” I am? That’s because lawyers don’t whine when someone says something that hurts their feelings. Get it?

          • Jordan says:

            This is great and all (really), but let’s come full circle, here’s the bottom line for all you young transactional lawyers out there: take the extra time to cross-your t’s and dot your i’s, and while you may not be able to put something in your contract to guard against “absurd” arguments (whatever that means), you certainly can (and should) include provisions in an attempt to discourage such arguments (such as, for example, an attorneys’ fees provision in case of litigation).

        • Jordan says:

          Spoken like an experienced litigator. Whether one party thinks the other parties’ argument is “absurd” is irrelevant. Once you’ve gotten to that point, everyone loses.

  3. John Hightower says:

    “A little inaccuracy sometimes saves tons of explanation.”
    –Saki, “The Square Egg”, 1924

  4. r. dernister says:

    “Extraneous, fatuous gunk”? Andy, have you been reading my appellate briefs again?

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