Good luck in court with that one

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The Devil’s Advocate

Jimmy Hill, yesterday.


In which the curmudgeonly old sod puts the world to rights.

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A counterfactual proposition which ought to be put in service more often than it is, in defence of simple language and resistance of flannel.

When presented with such pettifoggery, resist it thus:

“Are you saying that a court would seriously entertain that argument?”

In other words, good luck in court with that one.

This is rather like reacting, as schoolboys of the JC’s generation did, when presented with a preposterous playground boast — you know, the “my dad was in Colditz during the war, and he escaped, in a bi-plane made out of leberwürste stolen from the refectory” sort of thing — by theatrically stroking one’s chin and cackling, “Oh, right, Jimmy Hill.”

Friends, we do not do the “Jimmy Hill chin-stroke” nearly enough any more.

The idea is to move the debate from tedious hypotheticals about conceptual risks and theoretical linguistic imprecisions, to addressing practical risks of significant confusion that result in loss.

A lawyer’s mandate is made of wood, metal, leather and earth. It is not of the spheres. We are not theorists of perfect exactitude, but enablers of commerce. We come back, as usual, to our old friend Voltaire: Perfection is the enemy of good enough.

But, but, but: this is so easy to say. Over yonder looms the long shadow of the agency problem: Legal eagles are creative, yes, but the forensic imagination bounds toward the paranoid, away from practical common sense at every opportunity.

Legal eagles side not with Voltaire, but Descartes: j’édite donc je suis: “I mark up, therefore I am”.

Every legal negotiator will, regularly, find herself engaged in a fruitless argument about some hypothetical catastrophe which might arise if a counterpart should wilfully misconstrue the plain but general language of a contract. The difficulty of resisting this sort of passive-aggressive logic is articulated in the anal paradox, since fully validated in Büchstein’s ninth law of worker entropy.

“But what if I want to do [here, insert any harmless activity, contiguous with the plain intent of the commercial bargain, and of no practical consequence to the other party]?”
“It doesn’t say you can’t.”
“But it doesn’t say I can, either.”
“It doesn’t have to.”
“Yes, but it could.”
“Don’t be ridiculous.”
“Look, it won’t hurt to say, out loud, for the avoidance of doubt, that I can.” “What kind of doubt?”

By way of example from a confidentiality agreement: one might expect the following pedantic addition to a simple definition: Confidential information” means all information relating to to a party or otherwise relating to that party or its affairs...

Now to a prose stylist — indeed, to all those interested in the efficient conduct of business from any perspective whatever their feeling for literature — that addition is an abomination. But it precipitates our old friend, the anal paradox, for arguing to remove it again, seeing as it does no harm, is an even greater waste of time and resources.

So, these curlicues accrete and, through time, one’s templates silt up with pedantic, fussy language, organisational scar tissue, the fossil record of prior calamities, work-arounds and ungainly compromises reached to accommodate uncomprehending, truculent risk managers who have long since moved on. So, the templates become inscrutable, unknowable — literally ineffable: they acquire some kind of mystical reverence, because no-one has the mandate, the time the energy nor the interest to question them. Their very baroqueness gives the rent-seeking military-industrial complex something to do.

This allows plain language windbags, like yours truly, to rail freely about the enormity of classic legal drafting, knowing it to be an entertaining way of blowing off steam about a problem that cannot be solved.

Quixotic our quest may be, but we are honour-bound to make it. For it is always worth defending textual elegance, not just in the name of handsome prose — though surely that is reason enough — but in defence of simplicity, adaptability, clarity, and operability.

Think global, act local.

This is where you, my crusading legal eagle, can make a difference. Don’t stand for it.

Besides, acquiring a reputation for anti-pedantry brings its own rewards: your counterparts will learn to fear you. They will avoid engagement. They may start to heal themselves, finding that to be a path of less resistance. The hollow pleasure that comes from inserting foam into your manuscript will not be worth the bother, as you will be certain to to spend tedious hours arguing for its removal again.

Make it known that there will be no easy swept-back wing and knee slide moments when you are on the other side of the table. Those who get to know you will tire of trying.

The best argument is the fictional session before the Queen’s Bench at which one might litigate this hypothetical point. And here we turn to our old friend Sir Jerrold Baxter-Morley, Q.C. to illustrate.


Act II, Scene v

A courtroom in the Queen’s Bench Division. Lord Justice Cocklecarrot M.R. straightens his papers and looks up brightly, only for his face to darken at what he sees. Sir Jerrold Baxter-Morley, Q.C. arises, fidgets unsubtly with his undercarriage and addresses the court with a pained expression.

Cocklecarrot L.J.: Now, Sir Jerrold: this one seems open and shut, even for you? “Confidential information means all information relating to a party.” Couldn’t be much clearer than that, could it? The plaintiff was a party, was it not? And your client, the defendant, published the plaintiff’s unpublished audited financial statements in the “personals” section of the Luxemburger Wort. Is not your client bang to rights here, Sir Jerrold?
Sir Jerrold: Well m’lud, the information my client disclosed did not relate to the plaintiff.
Cocklecarrot L.J.: Oh?
Sir Jerrold: Quite so. It was information about the plaintiff's business. Not the plaintiff.
Cocklecarrot L.J. (After a disbelieving pause): Sir Jerrod, am I to take your contention to be that sensitive information the plaintiff gave the defendant “about its business” should somehow be taken as not being “about the plaintiff” itself?
Sir Jerrold: Those are my instructions, m’lud.
Cocklecarrot L.J.: So, you would have me adopt a quite perverse interpretation in order to subvert the plain commercial intent of the arrangement?
Sir Jerrold (Frantically scanning his brief): Yes, that’s it exactly, my liege.
Cocklecarrot L.J.: Would you say that is fair?
Sir Jerrold (Scanning the courtroom for that damnfool solicitor, Graves, who is nowhere to be seen): I would have to take instructions, m’lud. In the mean time —
Cocklecarrot L.J.: You wish the ground would open up and swallow you?
Sir Jerrold: I do, m’lud.
Cocklecarrot L.J.: I shall make an order to that effect, Sir Jerrold.

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