Sharpened stick

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During the snow melt in 1941, Lance-Corporal Pinterman’s mother Gladys was swept away in an avalanche. Group Captain Cocklecarrot summoned Sergeant Baxter-Morley into his office.

“Sergeant, I need you to pass on the news to Pinterman that his mother has died.”

“SAH!” Baxter-Morley snapped off a salute and exited the office, abrim with purpose.

At reveille next morning, the drill-sergeant ran through his usual order of the day. “Johnston and Hodgkinson, report for guard duty. Fotherington-Thomas, you are on latrines. Pinterman, your mother is dead: have the morning off. The rest of you, report to Lieutenant Branton on the assault course. All right, men: fall out.”

Pinterman — a sensitive soul at the best of times — was devastated. But worse was to come: not a month later, his father also died, taken by a bear. Group-Captain Cocklecarrot once again called in the drill-sergeant in. “I say, Baxter-Morley, Pinterman’s father popped his clogs. I need to let him know.”

“I see, sah.” The drill sergeant span on his heels but his commanding officer interrupted him.

“Now, look here, Sergeant: the poor chap didn’t get out of his bed for two weeks last time. How about being a little more tactful this time?”

“SAH!” The sergeant clicked heels and exited, calling the unit to assemble at once.

“All right men, fall in. Now we are conducting a parenthood survey. Every one of you whose father is still alive, take three steps forward. PINTERMAN WHAT THE DEVIL DO YOU THINK YOU ARE DOING?”

There are ways of saying things.

When drafting a legal contract, you might expect experienced lawyers would avoid writing in a way that will feel to opponents like the poke of a sharpened stick in the ribs.

These are phrases that cost nothing, but can only inflame passions that you and your client are best suited by being quietened down. Take a little behavioural psychology to the table with you:

Lack of trust indicators

Any time it seems you are straining to button down any doubt, however fanciful, you impute to your counterparty an air of bad faith which will — even though it may be fully justified — put up hackles. Clarity and doubt avoidance is the goal, but there are ways of achieving this without looking like you wouldn't trust your client further than you can throw it.

• Unnecessary definitions: Resist the temptation, which many legal eagles cannot, to define every variable term in your contract. The simply appearance of a definition - the brackets, quotes, and bold — punctuates your text with an air that we are lot leaving anything to chance in the face of an opportunistic cad such as you. That is not an impression one normally likes to give to ones customer, and it may have the unintended consequence that your customer sees it as an invitation to be opportunistic, should there be any holes in your punctillaiety, or at the very least to push back wherever it feels you have drawn your boundaries too widely. Needless to say any time spent negotiating clarifications is time wasted; time spent arguing about the definition of “the customer” is positively damaging.
• Pedantic clarity tics: Expressions, which finance lawyers love, like “any and all”, “one or more”, “whether or not”, “including without limitation”, “unless expressly agreed in writing” betray not only a lack of confidence in the plain meaning of words, but a lack of trust in the intentions of your customer.
• Responsibility avoiders: Write with energy, confidence and consequence. Own what you say. Avoid passives, which can bury responsibility. “An oversight was made in your monthly statements” is weaselly: say instead, “we made an error in your monthly statements.” That said, unless you are owning the error yourself, cabinet collective responsibility applies: we made an error — all of us; the body corporate — don’t throw some faceless employee under the bus.

Allocate responsibility, not liability

Put things in the positive. Rather than cataloguing the things one shall, or shall not be liable for — which presents breach of contract as the operating presumption — allocate responsibility. So, instead of “we accept no liability for our advice or the content of anything we say or do ...” say “you accept responsibility for the decision whether to execute and will obtain such independent advice as you consider necessary to assessing the merits of the transaction”.

That said, be clear about who is responsible. The legal eagles great crutch the passive can let you down. Not only do passives drain energy from your writing, and make it harder to read, they often obscure (or fudge) who is responsible for

Don’t rub their nose in it

The JC has a principle of drafting: “I never said you couldn’t”. Don’t stipulate things in a contract that are, as a matter of law, true in any case. So, for example,

“You will be responsible for and we shall not accept any liability for, your own costs of performing the Transaction”

I mean, you don’t say.

There are at least three reasons not to state unnecessary legal realities:

• It’s a waste of space: First, it goes without saying and therefore takes up space. In a busy world overstuffed with legal contracts in need of reading, that should be reason enough not to include it.
• It isn’t good news: Second, it states a faintly unpalatable reality. Undeniable though it may be, no-one likes a downer, so why take it upon yourself to be the messenger of unwelcome news, however inevitable? Don’t be that guy. Remember, your best case scenario as a messenger of boring of bad news is you don’t get shot.
• You’re asking for mark-up: Third, it obliges your counterparty to read it, and invites her lawyer to fiddle with it. That ornamentation might be harmless, but simply tedious — for the avoidance of doubt — but it might not: “except in the case of the service provider’s fraud, negligence of wilful default...” It might even give her some ideas that she should for some reason not be responsible for her own costs of the transaction; ideas that had you not mentioned it, would not have popped into her head. But in no case will it be beneficial to you or your client.

So help me

If you have a choice between, on one hand, sounding like a boarding school matron addressing recalcitrant schoolboys with a wooden spoon and, on the other, not sounding like that, our advice is when addressing your clients it is better not to.

Thus if you have the choice between:

The Client hereby indemnify, hold harmless and keep indemnified, and held harmless, jointly and severally the Service Provider, its affiliates and its and their respective employees, agents, advisers and associates from and against all claims, actions, proceedings, requests, demands, criticisms, innuendoes, slurs injuries, flesh-wounds, incapacities, inconveniences, disappointments, penalties, free-kicks (direct or indirect) liabilities, losses, damages (direct or indirect), costs and/or expenses arising or alleged to arise from, under, out of, in connection with or in relation to the Agreement, our services under it or any other matter or activity of any type, kind or variety referred to contemplated by or derivable by inference from the Agreement, any services act or thing done in connection with it or which arise out of any breach, alleged breach constructive breach of any of your, or your affiliates, agents, servants or advisers obligations, duties or any warranties arising in contract, tort, equity or other tenets of natural, retributive, distributive or restorative justice now in existence or hereafter emerging whether under the terms of or as a result of this Agreement or otherwise, which any such person or its friends, romans and countrymen may suffer or incur in any jurisdiction, territory, location whether or not now existing or subsequently discovered.

or

You indemnify and hold us harmless against any claims we suffer and must reimburse us promptly on demand for any losses we incur as a result of our engagement and our reasonable performance of our services under it.

Which will you choose?

Personalise

It’s so obvious it hardly need be said, but writing in the first and second person is so much more personal than writing in the disembodied third person. the main objection is that “we” is ambiguous (it could refer to the party writing hte contract, or both parties to the contract) but this strikes us as more an admission of an underdeveloped facility with the English language than a material jurisprudential objection. For we manage in ordinary conversation without being perpetually confused — if it were otherwise “we” would not be the popular pronoun that it is. The secret is context. A certain type of lawyers fear context: to rely on a correspondent’s grasp of context is to leave open a door to wilful or wanton misconstrual that most lawyers would pray remained soundly shut. This is to place less faith in the common sense of customers, litigants and courts, and more in the value of baroque, leaden drafting, than we feel naturally warranted.