For clarity
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Towards more picturesque speech™
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Now as you know readers, the JC likes to argue the toss about every little thing, with every little person, any time day or night. Every so often the JC even finds himself getting in an argument with himself. This is one such occasion.
For however odious, however mealy-mouthed, however derogative of an attorney’s basic professional calling — “for the avoidance of doubt” does have a use, and a deliciously subversive one at that.
“FTAOD” is a dead man’s code: a message in a bottle; a trail of breadcrumbs; a final message to the hereafter from a doomed Tommy on the Front. It is the perishing hope that, perhaps years later, someone might come across it and his labour will not have been in vain. This is Private Eagle’s last, mud-stained letter to his sweetheart back home, saying “don’t worry, my love: everything will be all right,” the night before he was sent over the top.
How so? Well, cast your mind forward eleven years from the battlefield. The contractual skirmish in which Private Eagle’s parting shot was fired is but a memory, as is Private Eagle. The contract bearing it witness, once executed, was faxed, scanned, crushed, buried in peat, smudged, mislaid, sent by mistake to Colchester and eventually routed to its final resting place deep in an electronic document repository a server somewhere in Gdansk. This is where master contracts go once they have fulfilled their main purpose, which is injecting gravity and commitment to the onboarding ritual. They are sent there in the hope — usually justified, in fairness — they will never again be required. Except, ha ha, in case of catastrophe.
But a decade on, there is just such a catastrophe. The client is in trouble. The credit team are running around with their hair on fire. Suddenly, everyone up and down the chain of command to and including the chief risk officer is feverishly interested in that elderly contract. They want to know, in forensic detail, with utter certainty and now, what it means.
The file is retrieved from Poland, packaged up and sent to some poor legal eagle, who will never have seen it before, let alone been involved in its negotiation. She must do that analysis, faultlessly and at the double. She must categorically advise that the risk team has the necessary rights to plunge their detonator. She gets out the agreement template, sets it beside the executed document and does her best to compare this smudged, pixelated horror-show against what, according to the playbook, it was meant to say, and would have said, had it been a perfect world. But, eheu: it is not a perfect world. It is one inhabited by pettifogging buyside counsel and customers who like winning points on the docs for the sake of it. There are, accordingly, dozens of textual additions and excisions from the standard.
Now parsing a mutilated legal text on a good day is a fraught business: that is why lawyers get paid so much. But it is orders of magnitude worse in a crisis. Things that look straightforward in daylight rear up like hellish stallions in the black night of client distress. Words thrown carelessly into a draft take on a ghoulish aspect.
Of course, if those carelessly tossed-about words were simply a function of someone trying to show they they were paying attention or just making some input, it might be different. But, at a decade’s remove, that is a bold conclusion to draw. It is a curious fact of legal practice that the more harmless an addition is, the more terrifying it will seem on the eve of war. Its very frivolity will set alarms blaring precisely because it seems so pointless. Why on Earth would anyone go to the bother of adding “... under this agreement or any other agreement, where applicable, as the case may be,” if it didn’t mean something?
It is axiomatic that words deliberately inserted into a legal tract have work to do. If they are not obviously beneficent, she must assume them to be nefarious. She may not say, “it will be all right on the night”. What a legal eagle doesn’t know for certain she must deny. It is in her nature.
Now switch back to that poor, toiling Tommy and see the beautiful thing he has done. “For the avoidance of doubt” is his gift to the future: it dispels that kind of uncertainty before one can be gripped by it. It says, “to whom it may concern: you may safely ignore what follows. It goes without saying. It is only there because some clot on the other side wouldn’t let it go, and our salesperson was about to go into orbit if we did not sign the docs. I did not die in a ditch. We closed the deal.”
This is an honourable use of a dishonourable expression. While passing subtle judgment on your opponent’s pedantry, it steers your successors home, solving the perennial problem of delivering certainty in a draft and accommodating your customer’s pedantry at the same time. It is just a pity it is so tiresome a phrase. But other formulations might do as well: “to be clear” — if you are comfortable with an informal register — “for clarity” if not.
Thus “FTAOD”, for its outward silliness, becomes our little code: our in-joke: our word to the wise.