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 one of these. Where a client will see that page of tightly margined eight-point font at the back of his PowerPoint as a mere texture, a lawyer will see a power, beauty, and precision impossible to articulate to the laity. A good disclaimer cantilevers itself off the page and into three-dimensions, arcing gracefully into imagined geometries of space-time.

It 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, madmen and little old ladies; a brain-addling dark cosmos of unfathomable dimension: brimming with implied covenants, constructive knowledge, unarticulated warranties, unspoken waivers; riven with 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.