Disclaimer

The burden of proof, so the philosophers say, is on she who makes the existential claim. It is not for a defendant to make out a negative.

But do not let that stop you trying. If, with many lawyers, you distrust epistemology — indeed, if you simply find silence uncomfortable — you can always slip in a disclaimer. Nothing gladdens an attorney’s heart more than one of these. Where a client sees such a page of tightly leaded eight-point font as mere texture, his lawyer will see a power, beauty, and precision impossible to articulate to the laity. A good disclaimer bootstraps itself off the page and into three-dimensions, arcing gracefully into imagined geometries of space-time, disclaiming even itself into nothingness.

As an intellectual exercise the disclaimer gets to the heart of the lawyer’s disposition. Reading one is to slip the deadbolt on the door to your counsel’s mind.

To disclaim is definitively to say what, for the record, you are not saying.

Nosferatu, or the unsaid

Lawyers have a primal fear of the unsaid. They see it as not a dark, formless void but an uncharted black ocean stretching to a distant horizon, teeming with whirlpools, leviathans, madmen and little old ladies; a brain-addling cosmos of unfathomable dimension: brimming with implied covenants, constructive knowledge, unarticulated warranties, unspoken waivers, ineffable courses of prior dealing, deemed joint ventures, fiduciary duties; shot through with open-ended equitable indemnities for any kind of stupidity in which your counterparty might, while carrying out its end of your bargain, indulge.

Any of these forensic succubi may spark and crackle afire without warning should your magic incantations not ward them off. Just as vampire hunters have their amulets, wooden stakes, potions of garlic and vials of holy water, we lawyers have our disclaimers: they are our shield and sword, effective against all this terrifying void of nothingness. The safest way, so the thinking goes, to ensure something is not on the record is, fairly and squarely, to put it there, in terms as unequivocal, comprehensive and impenetrable you can make them.

Thus, a disclaimer fills this unspoken septic hinterland with calming doggerel intended to dampen, insulate and inoculate those empty spaces like polystyrene chips in a mail-order carton.

Volume is a premium. In penning a disclaimer a lawyer must spurn whatever commitment he has to brevity. He must be stuff his prose with passives, redundancies, jargon and double negatives. He must repeat himself, repeat himself again and, for the avoidance of doubt, repeat himself. The less he says and the more elaborate the constructions he uses to say it, the better.

Put it in seven point, the wrong font, margins skewiff at the back of the document, and label it “Important information that you must read”. BREAK INTO LONG TRACTS OF BOLD CAPITALS FOR NO OBVIOUS REASON. LABEL THEM A NOTICE TO NEW HAMPSHIRE RESIDENTS.

See also

• Ultimate disclaimer
• Capitals