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'' | [[Disclaimer]]s ''do'' work, and can ward off [[negligent misstatement]]: {{casenote|Hedley Byrne|Heller}}, reaffirmed recently in {{casenote|Walsh|Jones Lang Lasalle}}.}} | ||
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. | The [[The onus of proof is on the person making an existential claim|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. | But do not let that stop your [[counsel]] trying, on your tab. This is, in essence, {{sex|her}} industry when she pens a [[disclaimer]]. | ||
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. | 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. | ||
To disclaim is definitively to say, for the eternal record, what you are ''not'' saying. | To disclaim is definitively to say, for the eternal record, what you are ''not'' saying. | ||
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===[[Nosferatu]], or the Unsaid=== | ===[[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 | 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 than 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 stake]]s, potions of [[garlic]] and vials of holy water, we [[lawyer]]s 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. | 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 stake]]s, potions of [[garlic]] and vials of holy water, we [[lawyer]]s 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. | ||
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Thus, a [[disclaimer]] fills this unspoken septic hinterland with calming doggerel intended to dampen, insulate and inoculate those empty spaces, like so many polystyrene chips in a mail-order carton. | Thus, a [[disclaimer]] fills this unspoken septic hinterland with calming doggerel intended to dampen, insulate and inoculate those empty spaces, like so many polystyrene chips in a mail-order carton. | ||
In penning a disclaimer, spurn whatever commitment you have<ref>Be honest: it is usually salutary and insincere.</ref> to brevity. Stuff your | 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]]. | ||
===What if it is not enough?=== | ===What if it is not enough?=== | ||