Disclaimer: Difference between revisions

The burden of proof, so the philosophers say, is on the person making the existential claim. It is not for a defendant to [[prove]] a negative.

But do not let that stop your counsel trying.  

If you distrust [[epistemology]] — if, as many [[lawyer]]s do, you just find unpunctuated silence uncomfortable — you can always slip in a [[disclaimer]]. Nothing gladdens an [[Mediocre lawyer|attorney]]’s heart more than one of these. Where a [[client]] sees such a page of tightly leaded seven-point font as mere texture, his advisor will behold a thing of power, beauty, and precision impossible to articulate to the laity. A [[Ultimate disclaimer|good disclaimer]] bootstraps itself off the page and into three-dimensions, arcing gracefully into imagined geometries of space-time, disclaiming even itself into nothingness.

===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 [[warranty|warranties]], unspoken [[waiver]]s, ineffable [[course of prior dealing|courses of prior dealing]], [[deemed]] [[joint venture|joint ventures]], [[fiduciary duty|fiduciary duties]]; shot through with open-ended [[equitable indemnities]]<ref>NB: I made this up for satirical purposes, but as ever, fact is stranger that fiction. [http://vondranlegal.com/what-is-definition-of-equitable-idemnity/ Californian law recognises an equitable indemnity].</ref> 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 [[incantation|magic incantations]] not ward them off. Just as vampire hunters have their wooden stakes, potions of garlic and vials of holy water, we lawyers have our [[disclaimer]]s: they are our shield and sword, universally effective against 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 as you can make them.  

In penning a disclaimer, spurn whatever commitment you have<ref>Be honest: it is usually salutary and insincere.</ref> to brevity. Stuff your prose with [[passive]]s, redundancies, jargon and [[double negative]]s. Repeat yourself, repeat yourself again and, [[for the avoidance of doubt]], repeat yourself. The less you say and the more elaborate the constructions you use 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.

The sky might, yet, [[Chicken Licken|fall in on your head]]. What if the ''very act of disclaiming'' of itself invokes some new, un-thought of, liability<ref>I’m messing with you now, I know.</ref>? Could clever words inadvertently summon from across the Styx some new demonic imp to haunt your dreams and ply your client with indeterminate liability?

The epistemologists will tell you this is impossible to rule out in theory, however absurd it might seem in practice: ''[[nego, ergo advocatum sum]]'', as [[Descartes]] put it. But you can always try, by adding a ''[[disclaimer]]'' to the bottom of your disclaimer:

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*[[Capitals]]