Good luck in court with that one
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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 if you presented your interpretation to a court it would, seriously, entertain it?”
This is rather like reacting, as schoolboys of the JC’s generation did, when presented with some transparently preposterous playground boast in the playground, by theatrically stroking one’s chin and cackling, “Oh, right, Jimmy Hill you did.”
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 linguistic imperfections, to assessing the practical risk of significant confusion that results 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 commercse. Perfection is the enemy of good enough.
But yonder looms the long shadow of the agency problem: Legal eagles are nothing if not creative, though the forensic imagination bounds toward the paranoid, away from practical common sense at every opportunity. 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, which the JC has since fully validated as the ninth law of worker entropy.
“But what if I want to do that?”
“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 any prose stylist — indeed, to any self-respecting fellow interested in the efficient conduct of business — that addition is an abomination. But it precipitates our old friend, the anal paradox, for arguing the toss to remove it again, seeing as transparently it does no harm, is an even more egregious waste of of the collected’s time and resources.
So, these curlicues tend to stick and through time, ones templates silt up with pedantic, fussy language. This allows plain language windbags, like yours truly, to rail about the enormity of classic legal drafting. Our view is that it is always worth defending textual elegance, not just in the name of handsome prose (though surely that is enough) but in defence of simplicity, 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. The hollow pleasure that comes from inserting their foam into your manuscript will not be worth the bother, as you can be certain to to spend tedious half hours insisting on 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 quickly 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, K.C. to illustrate.
Act II, Scene v
A courtroom in the King’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, K.C. arises sclerotically, fidgets unsubtly with his undercarriage and addresses the court with a pained expression.
- Cocklecarrot L.J.: 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?
- 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.: Your argument is that sensitive information the plaintiff gave the defendant about its business should somehow be taken as not being “about the plaintiff”?
- 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.