Disclaimer

The burden of proof, so the philosophers say, is on she who makes the existential claim. If, as so many lawyers are, you find discomfort in silence, you can always slip in a disclaimer.

Nothing gladdens an attorney’s heart more than an artfully penned disclaimer. Where a client will see that page of tightly margined eight-point font at the back of his PowerPoint as a mere texture, the same tract, to a commercial lawyer, represents a power, beauty, and precision impossible to articulate to the laity. A good disclaimer will cantilever itself off the page and into three-dimensions, and to a practiced eye will arc gracefully into an imagined geometries of space-time.

The disclaimer gets to the heart of the contemporary legal disposition. Understanding its pathology is to slip the deadbolt on the door to your counsel’s mind.

To disclaim is to say, definitively and for the record, what 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 ocean stretching to a distant horizon, teeming with whirlpools, leviathans, savages and madmen; a brain-addling dark cosmos of unfathomable dimension: unknown, unknowable but frenetically hypothesised about, brimming with implied covenants, constructive knowledge and unarticulated warranties, acknowledgments, waivers, riven with ineffable courses of prior dealing, joint ventures, fiduciary duties, and shot through with open-ended 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. Yes, world, it’s true: one can evade any of these tribulations, however purgatorially horrid, by a correct formulation in nine point text.

Thank God, in other words, for lawyers.

For you lawyers, know this: there is a single shield and sword by your side, effective against them all: the disclaimer.

You can fill a terrifying open void of nothing with calming words that dampen, insulate and inoculate like so many polystyrene chips in a mail-order carton. One pegs off this unspoken septic hinterland with doggerel. The safest way, so the thinking goes, of ensuring something is not on the record is, fairly and squarely, to put it there.

There is something counter-intuitive about that, to be sure, but a course of dealing has grown up to make the statement as unequivocal, comprehensive and impenetrable as possible.

Thus: In penning a disclaimer a lawyer must spurn whatever commitment, however salutary, he has to brevity. He must be stuff his prose with passives, 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 deploys to say it, the better.

Put it in seven point font, in an ugly serif, margins skewiff at the back of the document. 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. Just as vampire hunters have their amulets - wooden stakes, potions of garlic and vials of holy water, disclaimers are lawyer’s.