Non dicat manifesta cruenta
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Do not state the bleeding obvious
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When you are possessed of a job whose value is hard to show in substance the temptation can be to show what you can by way of form.
For to change is to make a difference, and to make a difference, in the inscrutable business of advising on the law — QED telling your client about something they have admitted by the act of phoning you up they don't know already — is to add value. We may not know, we cannot tell how — but it is.
Especially when you can’t really think of anything substantial to say, a bit of peripheral fiddling can make you feel much better. Oddly , it cheers up your client, too. Force majeure offers literally unlimited scope for imaginative contingency generation. If you are in a hurry, an “as the case may be”, some rapid-fire and/ors and a rangy for the avoidance of doubt can do the job. Especially if delivered under the covering fire of at least one substantive point — you know, meaningfully pruning a gratuitous indemnity or something like that.
There is an element of honour among thieves here: a sensitive pen-holder will have served up a first draft studded with plainly unreasonable terms — “nice-to-haves” conjured by the risk team with the very intention of theatrically conceding them, testimony not only to your client’s corpulent commercial fecundity but grudging concession to your own magisterial contractual acumen.
Everyone wins: the client feels special, thinks you have done a magical job and will insist on your heroically won clarifications are added to its playbook for all subsequent service contracts.
This insignificant experience shows, in microscopic detail, how it is that legal contracts come to look like they do: it is not some conspiracy among lawyers to keep chancers from the laiety away (although it has that effect), but rather the client’s own comfort blanket.
Clients — especially ones in big organisations, with dedicated risk and contracts negotiation teams — like the peace of mind that comes from knowing what they do seems devilishly hard and requires specialist interpretation to make head or tail of. The last thing they want is for some smart-arse to come along with an one pager NDA that takes all the mystery away.
So it is with irony that we offer you this Latin maxim:
Non dicat manifesta cruenta
Refrain from stating the bleeding obvious.
If ever a rule were bred for honour in the breach, this is it.
As they have been for decades, learnèd thought pieces will continue to be published foretelling the future of simplified, straight-through processed, plain, coded legal terms. As long as the machines we build make generating well-formed but meaningless sentences easier — they have been doing this steadily now for half a century — do not bet on contracts getting shorter.